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httos://archive.org/details/statecontrolofprO0bart 


STATE CONTROL OF PRIVATE 
INCORPORATED INSTITUTIONS 
OF HIGHER EDUCATION 


As DEFINED IN DECISIONS OF THE UNITED STATES SUPREME 

Court, Laws OF THE STATES GOVERNING THE INCORPORATION 

oF INSTITUTIONS OF HiGHER EDUCATION, AND CHARTERS 
OF SELECTED PRIVATE COLLEGES AND UNIVERSITIES 


BY 
LESTER WILLIAM BARTLETT, Pu.D. 


‘TEACHERS COLLEGE, COLUMBIA UNIVERSITY 
CoNTRIBUTIONS TO EpucaTIOoN, No. 207 


BUREAU OF PUBLICATIONS 
Teachers College, Columbia Anibersity 
NEW YORK CITY 


1926 


Copyright, 1926, by "TEACHERS COLLEGE, COLUMBIA UNIVERSITY 


Printed in the United States of America by 
J. J. LITTLE AND IVES COMPANY, NEW YORK 


ACKNOWLEDGMENTS 


I am deeply grateful to all who have made this study possible 
and assisted in its preparation: 

To Professor Robert J. Leonard, Director of the Schoolof Edu- 
cation, Teachers College, in charge of the college administration 
courses, who was chairman of my dissertation committee; and to 
the other members of the committee—Professors William H. 
Kilpatrick, Edward S. Evenden, and Edward H. Reisner—all of 
whom gave freely of their time and advice. : 

To Dr. Clyde Furst, Secretary of the Carnegie Foundation 
for the Advancement of Teaching, who assisted in securing from 
colleges and universities copies of their charters, and who placed 
at my service the library and materials of the Foundation. 

To Dr. George F. Zook, President of the University of Akron, 
formerly Assistant Director of the United States Bureau of Edu- 
cation, who permitted me to use a compilation of state laws directly 
bearing on the topic which were prepared by Dr. William R. 
Hood, legal specialist of the Bureau. 

To Professor George F. Canfield, Dwight Professor of Law, 
Columbia University, who read and criticised chapter II on the 
authority of the state to control private incorporated institutions 


of higher education. 
La AWire Bs 





CONTENTS 


CHAPTER 


a 


Il. 


rit 


IV. 


STATE CONTROL OF PRIVATE INCORPORATED INSTITUTIONS OF 
HicHErR EpucATION 

Setting 

Methods 

Definitions 


AUTHORITY OF THE STATE To ContROL AS DEFINED IN DECISIONS 
OF THE UNITED STATES SUPREME COURT . 
Authority of the State To Incorporate phate ; 
Authority of the State To Place Limitations upon the Powers 
of an Institution at the Time of Incorporation . : 
Authority of the State To Exercise a Continuing eantenl 
over Institutions after Incorporation ; 
palatrimMiay Vite Shey. Perum kes WUE Ort «Pee 


STATE CONTROL AS PROVIDED IN THE LAWS OF THE STATES . 
Laws under Which the States Incorporate Institutions of 
Eiighere Pecication yt cs oliewnie ry fee LoiiN ee Uouhas eis Be 
Initial Control 
Continuing Control . : 5 
Summary of State Control as Beviden in aie ee : 


STATE CONTROL AS DEFINED IN THE CHARTERS OF THIRTY-NINE 
COLLEGES AND UNIVERSITIES . 
Laws under Which the Colleges Were! pected 
nial Cantroli.: went a esc ltt daeuneh Lee oad Wt RE A Fa 
Continuing Control . 
Activity of the Respective States in ne dminereaticn: of tHe 
Colonial Colleges 
RlELICT Als OLIN EV We ee See aay Tehnenin anu ogl ean Wine Fire 


SUMMARY OF FINDINGS... . 


PAGE 


ON ND 


12 
13 


TABLES, CHARTS AND GRAPHS 


'PABL EGE LE 


TABLE IT. 


CHarr 1. 


CHART 2. 


GRAPH I. 


ANALYSIS OF THE LAWS OF THE STATES GOVERNING THE 
INCORPORATION OF INSTITUTIONS OF HIGHER EDUCATION 


PAGE 


Facing page 68 


ANALYSIS OF THE CHARTERS OF THIRTY-NINE SELECTED 


PRIVATE COLLEGES AND UNIVERSITIES. . . Facing page 94 


Powers VESTED IN THE EDUCATIONAL AGENCY OF THE 
STATE PERTAINING TO INITIAL AND CONTINUING CONTROL 
OVER PRIVATE INCORPORATED INSTITUTIONS OF HIGHER 


EDUCATION 4h HET INiiag ORS De TR PUES aie Ve nS 
STATE CONTROL OF PRIVATE INCORPORATED INSTITUTIONS OF 
HIGHER EpUCATION—-SUMMARY . . . . Facing page 95 


PERCENTAGE OF THE MEMBERSHIP OF THE Boarps oF Har- 
VARD, YALE, COLUMBIA, PENNSYLVANIA, AND DARTMOUTH 
Wo ARE STATE OFFICIALS OR APPOINTEES OF THE STATE, 
SHOWING THE EFrort OF THE STATES TO SECURE GREATER 
CONTROL OF THEIR RESPECTIVE COLLEGES AND THE PRESENT 
STATUS yee earl fe sae ghetto sitet cat Ate IL esis hy CiRe bk hres me 


94 


STATE CONTROL OF PRIVATE 
INCORPORATED INSTITUTION 
OF HIGHER EDUCATION 


CHAR Pe Ral 


STATE CONTROL OF PRIVATE INCORPORATED 
INSTITUTIONS OF HIGHER EDUCATION, SET- 
TING, METHOD, DEFINITIONS 


BRIEF 
A. Setting 
Three phenomena bring higher education within the realm of state 
concern: 


The rapidly increasing demand for higher education. 

The conception that higher education is a function of the state. 

The present movement toward standardization of higher education. 
Public institutions, under state support, are within the control of the 
State. 


B. Method 

Question: 
What authority has the state to incorporate institutions, place 
limitations upon the powers of an institution at the time of incor- 
poration, and exercise a continuing control over an institution after 
incorporation? 
Under this authority, what control is exercised by the states? 

Sources: 
Decisions of the United States Supreme Court. 
Laws of the states governing the incorporation of institutions of 
higher education. 
Charters of selected private colleges and universities. 


C. Definitions 
State control. 
Institutions of higher education. 
Private incorporated institution of higher education. 
Initial control by the state. 
Continuing control by the state. 
Educational agency of the state. 
The managing board of an institution. 


I 


2 State Control of Private Higher Education 


SETTING 


Three phenomena bring higher education within the realm of 
state concern: (a) the rapidly increasing demand for higher 
education; (0) the conception that higher education, as well as 
elementary and secondary, is a responsibility of the state; (c) the 
present movement toward the standardization of higher 
education. 

The demand for higher education 1s registered in the increasing 
enrollment at colleges and universities. The growth of enroll- 
ment in the institutions of higher education since 1890 has been 
4.7 times as fast as the growth in general population. During the 
two years, 1920-1922, the increase was approximately 18 per cent, 
or twice the increase for the entire decade, 1890 to 1900, and 
slightly more than for the decade, 1900 to 1gto. [1]? Indi- 
cations are that the enrollment will increase. During the same 
period, 1890-1922, the secondary schools increased in enrollment 
8.3 times as rapidly as the general population, or 1.8 times as 
fast as the enrollment in colleges. [1] Not only is the college 
population increasing rapidly; there results a proportionate in- 
crease in the number of graduates who disperse into the state and 
intensify the interest in higher education. In 1890, 6,853 bacca- 
laureate degrees were conferred ; in 1922, 47,854. [1] It is evident 
that higher education is one of the growing interests of the state, 
and, as such, comes within the realm of state concern. 

The interest of the state in higher education is established in 
policy and practice. Yet the way in which that interest is ex- 
pressed has changed. In the Colonial period and well into the 
middle of the nineteenth century stimulation and promotion char- 
acterized the activity of the state without any established policy 
of state control. Charters to colleges from the legislatures were 
grants of power and privilege to be enjoyed under private initia- 
tive. Expressions of this policy appear in the early laws. The 
constitution of Massachusetts, 1780, states: 


It shall be the duty of the legislature and magistrates, in all future 
periods of this Commonwealth, to cherish the interests of literature 
and the sciences, and all seminaries of them; especially the University 
of Cambridge .. . [2] 


1 Numbers within brackets refer to the publications given at the end of each chapter. 


Setting, Method, Definitions 3 


In the constitution of Pennsylvania, 1790, is a provision that “the 
arts and sciences shall be promoted in one or more seminaries of 
learning.” [3] Similar provisions appear in the constitutions of 
North Carolina and Georgia. Even the Regents of the University 
of the State of New York, recognized as an outstanding example 
of a state agency charged with control over higher education, was 
created in 1784 primarily for the purpose of promoting semi- 
naries of learning. (See page 90.) 

State aid to institutions of higher education has been prac- 
ticed from the founding of the first college. The General Court of 
Massachusetts Colony appropriated toward the support of Har- 
vard College at the time of its creation the sum of 400 pounds, an 
exceedingly generous amount for the small population then in the 
colony, equaling the entire tax for all other purposes. [4] Yale, 
Dartmouth, William and Mary, Columbia, and Pennsylvania re- 
ceived grants from their respective commonwealths during the 
Colonial period. [5] Except in a few eastern states, notably 
Vermont, New York, New Jersey, Pennsylvania, and Maryland, 
the practice of the states in giving aid to private institutions has 
ceased. [6] 

State aid is now applied differently. Participation of the state 
in higher education through institutions of its own, under its 
support, is exemplified by forty-four state universities. This 
conception of state participation was first registered legally in the 
constitution of the state of North Carolina, 1776, which states that 
“all useful learning shall be duly encouraged, and promoted in one 
or more universities” (clause XLI). The charter for the uni- 
versity was granted by the General Assembly in 1789. [10] The 
constitution of the independent republic of Vermont, in 1777, 
likewise declared that “one university in the state ought to be 
established by direction of the General Assembly.” In 1791 the 
charter of the University of Vermont was granted. [10] The 
University of Georgia was created by the legislature of Georgia in 
1785. [10] 

The conception of the state university as a part of the educa- 
tional system of the state is clearly defined in the constitution of 
Indiana, 1816. Section 2 states: 


It shall be the duty of the general assembly, as soon as circumstances 
will permit, to provide by law for a general system of education, 


4 State Control of Private Higher Education 


ascending in a regular gradation from township schools to a state 
university, wherein tuition shall be gratis, and equally open to all. [7] 


Virginia established its university, the University of Virginia, in 
1819, rewarding the efforts of Thomas Jeffersun, the foremost 
early exponent of a state system of education. There followed 
in 1817 the University of Michigan, the educational center of the 
state of Michigan. 

Further recital is not necessary. It is evident that higher edu- 
cation is an interest of the state, expressed first in promotion and 
financial aid, later in participation through institutions under state 
support and control. If the policy is to prevail that higher educa- 
tion be provided for all qualified students who desire it, then the 
present rapidly increasing demand compels the attention of the 
state to the providing of adequate facilities. 

Cubberley summarizes the position of the state’s responsibility in 
these words: 


It ought to be essentially the business of the State to formulate a 
constructive policy for the development of the education of the people 
of the State, and to change this policy from time to time as the 
changing needs of the State may seem to require. [8] 


The present tendency toward standardization in higher educa- 
tion also brings higher education within the realm of state 
concern, Cubberley says further: 


The formulation of minimum standards for the various forms of 
public education, the raising of these standards from time to time, 
the protection of these standards from being lowered by private 
agencies, and the stimulation of communities to additional activity, is 
a fundamental right and duty of the State. [8] 


Four agencies, either directly or indirectly, are active in raising 
the standards of higher education: professional associations, in- 
stitutional associations, educational foundations, and state licensing 
agencies (including teacher certification). 

Activity began with the professional associations. In 1846 the 
American Medical Association was established. This was fol- 
lowed by the American Society of Civil Engineers in 1852, Na- 
tional Education Association (National Teachers Association) in 
1857, American Bar Association in 1878, American Society of 
Mechanical Engineers in 1884. [9] Attention by these associa- 


Setting, Method, Definitions 5 


tions is confined to the respective professions and directed toward 
their general improvement. For instance, the efforts of the Coun- 
cil on Medical Education of the American Medical Association 
are outstanding. Under the policy of spontaneous development 
which characterized the establishment of medical schools during 
the early and middle decades of the nineteenth century the schools 
were for the most part proprietary and operated for profit, wholly 
didactic in method of instruction, and developed without standards 
for equipment and training. The United States and Canada pro- 
duced four hundred and fifty-seven medical schools under this 
policy, of which one hundred and fifty-five survived in toro. [11] 
Due to the activity of the American Medical Association, weaker 
proprietary schools were gradually discontinued and the stronger 
ones standardized. [11] In 1923 the medical schools of the United 
States totaled eighty-one, of which seventy were rated as class 
Jake bea , 

Following the professional associations in date of organization 
came the institutional associations, the first of which was estab- 
lished in 1884 to effect more satisfactory arrangements between 
the secondary and higher institutions. The first association was 
the New England Association of Colleges and Preparatory Schools. 
Similar associations followed: Association of Colleges and 
Preparatory Schools of the Middle States and Maryland, 1888; 
North Central Association of Colleges and Secondary Schools, 
1892; Association of Colleges and Preparatory Schools of the 
Southern States, 1895. [13] Other associations of institutions for 
a somewhat different purpose also came into existence at about 
this time, Similarity of character was the binding element. Repre- 
sentative ones are: Association of Land Grant Colleges in 1887; 
Association of American Universities in 1900; Association of 
American Colleges in 1914; and American Council on Education, 
an association coordinating the other associations in higher edu- 
cation, in 1919. (See reports of respective associations.) Obvi- 
ously, the mutual exchange of experiences and the joint consid- 
eration of problems of instruction and administration at the 
various meetings of the organizations have been beneficial in a 
general up-toning of the constituent institutions. 

Recently educational foundations are also exercising a strong 
influence in raising the standards of colleges and universities. 
Among these are the General Education Board, 1903; Carnegie 


6 State Control of Private Higher Education 


Foundation for the Advancement of Teaching, 1905; Russell Sage 
Foundation, 1907; Carnegie Corporation of New York, 1911; 
Rockefeller Foundation, 1913; and Commonwealth Fund,. 
1918. [14] Their influence has followed two channels: one in 
defining standards as a basis for eligibility to the benefits of the 
charity, the other in making scientific studies. To illustrate the 
first: In his letter, April 16, 1905, giving $10,000,000 to provide 
retiring allowances, Andrew Carnegie confined his charity to the 
teachers of universities, colleges, and technical schools “under such 
conditions as (the Board of Trustees should) adopt from time to 
time.” [15] In administering the fund the trustees found it neces- 
sary for their purpose to define college, university, and technical 
school and to classify the institutions accordingly. Such classifi- 
cation is stimulating the under-standard institutions to self-ap- 
praisal and competitive effort. 

Scientific studies are being made extensively by the several 
foundations in their respective fields, such as social welfare, 
public health, and professional education. Aside from the con- 
tributions on various problems appearing in the annual reports, 
valuable studies have been made by the Carnegie Foundation for 
the Advancement of Teaching, such as: Medical Education in the 
United States and Canada, Engineering Education, Professional 
Preparation of Teachers for American Public Schools, and Train- 
ing for the Public Profession of Law. [16] ‘The various efforts. 
of the educational foundations, usually conducted in cooperation 
with the professional or institutional associations concerned and 
welcomed by them, are having very salutary effects upon the qual- 
ity of higher education. 

The state exercises a standardizing influence in granting to 
institutions of higher education a license to confer degrees, in 
approving teacher-training institutions for purposes of teacher 
certification, and in licensing candidates to practice in various 
professions. Degree-granting power is expressly conferred by 
the state, either by the legislature or another agency of the state, 
or by a general grant under corporation laws. Ina few states the 
educational agency of the state is empowered to grant the license 
to confer degrees and to revoke it in case of failure to comply 
with standards. These states are: Arkansas, North Carolina, New 
Jersey, Pennsylvania, and New York (see page 68). Laws gov- 
erning the certification of teachers [17] and the licensing of prac- 


Setting, Method, Definitions rp 


titioners in the professions, such as medicine, law, pharmacy, 
dentistry, and optometry, are now general in the states. The 
standardizing influence acts in this way: the institutions which 
offer training in any one of these fields make it their concern to 
provide the instruction prescribed as a minimum standard for 
license. Although this influence is indirect it is effectual. 

This brief statement of the four agencies that are raising the 
quality of higher education indicates the scope of the present 
tendency toward standardization. The state plays a definite part, 
yet beyond its direct participation it must be aware of the move- 
ment generally, if its fundamental right and duty, as defined by 
Cubberley, is to formulate minimum standards, raise the standards 
from time to time, protect the standards, and stimulate communi- 
ties to additional activity. 

Without further comment it is assumed that the three phenomena 
just considered, namely, the increasing demand for higher educa- 
tion, the conception that higher education is a responsibility of the 
state, and the present movement toward standardization, bring 
higher education within the realm of state concern. This being 
true, interest is directed toward the control of the state over 
incorporated institutions of higher education. What authority 
has the state in the control of such institutions? How is state 
control exercised? 

Public institutions, created by the state and under state support, 
are clearly within the control of the state. (See page 28.) These 
need not be considered. The question under consideration is, 
therefore, limited to private institutions. What authority has the 
state in the control of private incorporated institutions of higher 
education ? 

The major question resolves into three minor ones: 


1. What is the relationship of the state to the private incor- 
porated institutions under its jurisdiction ? 

2. What initial control do the states exercise over private insti- 
tutions of higher education at the time of incorporation ? 

3. What continuing control do the states exercise over private 
institutions of higher education after incorporation? 


METHOD 


The policies in the relationship of the state to incorporated in- 
stitutions, as presented herein, appear in those decisions of the 


8 State Control of Private Higher Education 


United States Supreme Court which define the authority of the 
state in matters affecting incorporated institutions, especially in- 
situtions of higher education, and in writings upon the police power 
of the state and the law of charities. Special attention is given to 
the authority of the state to incorporate institutions: (a) Author- 
ity of the state to place limitations upon the powers of an institu- 
tion at the time of its incorporation, and (b) Authority of the 
state to exercise a continuing control over an institution after 
incorporation. This is presented in Chapter IT. 

The status of the initial and continuing control of the states over 
their private incorporated institutions of higher education is taken 
from two sources: the general laws of the states governing the 
incorporation of such institutions, and the charters of a selected 
number of colleges and universities under private support. 

The status of control as found in the laws constitutes Chapter 
III. For this purpose the codes and statutes of the different states, 
including the District of Columbia, were examined with special 
reference to 


A, The extent to which states provide for incorporation under 
general law. 
B. Initial control by the state through 
I. A special approving agency. 
2. Limitations in the laws pertaining to property, staff, 
courses, admissions, and degrees. 
C. Continuing control through 
1. Limited tenure of the corporation. 
2. Reserved right to amend or repeal the articles of in- 
corporation. 
3. Regulatory control by the educational agency of the state. 


Chapter IV presents the status of the control of the state as 
defined in the charters of 39 selected private colleges and uni- 
versities. Included in the selection are all the institutions of higher 
education established in the Colonial period, and, in addition, the 
private institutions having an enrollment of 1,000 or more in 
1920 as given in the U. S. Bureau of Education, Bulletin 1922, 
No. 28, Statistics of Universities, Colleges, etc. The examination 
extended to the original charters and all amendments. The history 
of the institutions and the composition of the managing boards at 


Setting, Method, Definitions 9 


present were reviewed in the respective catalogs. Special attention 
was given in the examination to the following: 


A. Laws under which the institutions are incorporated. 
B. Initial control of the state through 

1. Limitations pertaining to property, admissions, courses, 
staff, and degrees. 

2. Limitations in the managing board with respect to ap- 
proval of the membership by the state, appointment of 
members by the state, and representation of state officials. 

C. Continuing control through 

1. Limited tenure of the institution. 

2. Reservation of power to amend or repeal the charter. 

3. Visitation by the state. 


Further special consideration is given to the activity of the 
respective states in the administration of the Colonial colleges 
with emphasis upon the attempt of certain of the states to gain 
greater control over their colleges during the first decades follow- 
ing the revolution. 

A compact picture of the treatment of the topic as outlined 
herein, although disguised in terms of the observations derived 
from the study, appears in the summary. (See Chart 2, page 96.) 


DEFINITIONS 


State control—tIn general the state refers to the people as a 
whole comprising a body politic. Specifically, as used in this dis- 
cussion, the state refers to the agencies of the state: legislative, 
executive, and judicial, created by the people to conduct the affairs 
of the political unit known as a state. State control, then, means 
control by one or more of these agencies or by any of the officers 
thereof, as the legislature, governor, state board of education, or 
the state supreme court. 

Institutions of higher education include colleges, universities, 
and technical schools requiring secondary education for admission 
and offering courses looking toward a degree. 

Private incorporated institutions of higher education are those 
created under royal charter, special act of the legislature, or gen- 
eral statutes, not under state support, and whose incorporators and 
successors as a body are granted certain privileges and powers 
defined in the instrument under which tncorporated. Articles of 


IO State Control of Private Higher Education 


incorporation define the terms and conditions of association. The 
charter is the grant of privilege and power by the state and in- 
cludes all such power and privilege whether defined in the constitu- 
tion of the state, general corporation law, or special legislative 
enactment. 

Initial control by the state refers to control by the state at the 
time the institution is incorported and extends to the special 
approval of the articles of incorporation by a state agency, and to 
the limitations prescribed by the state in general corporation law 
or in the special act of charter. 

Continuing control by the state refers to control exercised by 
the state over an institution after incorporation and includes such 
means as limited tenure of the institution, reserved power to amend 
or repeal, supervision through an agency of the state, or repre- 
sentation of state officials on the managing board. 

The educational agency of the state is the body charged legally 
with the direction and supervision of public education in the state. 
It includes the state board of education, state council of educa- 
tion, Regents of the University of New York, and similar agencies 
under whatever name designated. 

The managing board of an institution is the body vested with 
corporate powers to contract, sue, employ, make by-laws for the 
conduct of the corporation, etc., and it is known by such names as 
board of regents, board of trustees, and board of governors. 


REFERENCES 


1. U. S. Bureau of Education. Bulletin 1924, No. 20. Statistics of 
Universities, Colleges and Professional Schools, p. 4. 

2. Cuppertey and Exurorr. State and County School Administration, 
Source Book, p. 15. 

3. Cuppertey, E. P. Readings in the History of Education, p. 423. 

4. Pierce, B. History of Harvard University, p. 2. 

5. Crews, Educational Legislation and Administration of Colonial Gov- 
ernments, p. 501. 

6. U. S. Bureau of Education. Supra, Table 25. 

7. CuBBERLEY, E. P. Readings in the History of Education, p. 425. 

8. CupBEerRLtEY, E. P. Public School Adminstration, p. 24. 

9. Monroz, P. Cyclopedia of Education. (Respective topics.) 

o. Catalogs of respective institutions. 

11. Frexner, A. Medical Education in the United States and Canada, 
1910, pp. 6, 7. (Carnegie Foundation for the Advancement of 
Teaching. ) 

12. American Medical Association, Register, 1923. 


13. 


14. 
15. 


16. 
7, 


Setting, Method, Definitions II 


Monroe. Op. cit., College Examination and Certification Boards, pp. 
87, 88. 

Russell Sage Foundation. No. 65, 1924, American Foundations. 
Carnegie Foundation for the Advancement of Teaching. Annual 
Report, 1906, p. 8. 

Carnegie Foundation for the Advancement of Teaching. Publications. 
U. S. Bureau of Education. Bulletin 1921, No. 22. State Laws Gov- 
erning Teachers’ Certificates, Table to. 


ETA sro Raat 


AUTHORIDY,OR THBeS TA THEO] CONTRODIAS silks 
FINED IN DECISIONS OF THE UNITED STATES 
SUPREME, COURD 


BRIEF 


A. Authority of the state to incorporate institutions. 
Authority to incorporate is necessary. 
Authority to incorporate rests in the state. 
B. Authority of the state to place limitations upon the powers of an 
institution at the time of incorporation. 
The state must grant certain powers. 
The donor has rights in directing the use of his charity. 
The donor may be an individual or the state. 
The right of visitation is exercised in various ways. 
The state has authority to place limitations upon the powers. 
C. Authority of the state to exercise a continuing control over institu- 
tions after incorporation. 
Action of the state is limited by the Federal Constitution. 
The charter is a contract between the state and the incorporators. 
The state cannot alter vested rights. 
The state can found institutions. 
The state can reserve the right to amend or repeal the charter. 
The state is limited in its power to amend or repeal the charter. 
Courts exercise a continuing control. 
The state may exercise regulatory control. 


In considering the authority of the state over incorporated in- 
stitutions of higher education it is necessary first to know the 
policies which underlie the relationship of the state to such insti- 
tutions, especially: (a) The authority of the state to incorporate 
institutions; (b) The authority of the state to place limitations 
upon the powers of the institutions at the time of incorporation ; 
and (c) The authority of the state to exercise a continuing control 
over institutions after incorporation. 

Search for these policies was made primarily in the decisions of 


the United States Supreme Court because in them are given most 
12 


Control as Defined in Decisions of the U.S. Supreme Court 13 


impartially the relationships between the state and incorporated 
institutions within the state. Further evidence was sought in two 
writings: Freund’s Police Power; and Zollman’s American Law 
of Charities. The decisions of the courts of the states, except as 
they served the two authorities, are not included. It must be 
accepted that, on the question of the authority of the state to 
incorporate and control educational institutions, the opinions of 
the United States Supreme Court are final. 


THE AUTHORITY OF THE STATE TO INCORPORATE INSTITUTIONS 


Authority to incorporate is necessary. Why is it necessary for 
individuals, who desire to associate for a definite purpose, to secure 
from the state or another source the powers that will enable them 
to do business as a body? The answer is found in the character- 
istics of a corporation. The people who associate to found an 
institution are concerned that the institution continue to exist 
beyond the life of any one of them and that the property which 
they give be used perpetually for the purpose of the association. 
To meet just such needs the corporation came into existence. It 
had its origin about the end of the fourteenth and the beginning of 
the fifteenth century. The principles of corporation, however, 
existed under Roman law in the “collegium” and “universitas,’ and 
were kept alive through ecclesiastical and municipal bodies. [1] 

The corporation, then, is an artificial being, created by law, to 
provide powers which are not inherent in mere association. Among 
the most important of these is immortality, which provides con- 
tinuity of the object of its creation beyond the life of its members. 
Another property is individuality, by which a number of persons 
may act as a single individual, and, like an individual, manage their 
own affairs, and hold property without the hazardous and endless 
necessity of perpetual conveyance for the purpose of transmitting 
it from hand to hand. [2] 

Authority to incorporate rests in the state. It is necessary that 
these characteristics, or powers, not possessed by the individual 
incorporators, be granted by some authority. “In England the 
power of creating corporations was an important prerogative of the 
crown.” [3] In the United States it is a prerogative of the state. 
Says Freund, “The right to act as a corporation depends upon 
positive legal authority granted by the sovereign.” [4] But is the 


14 State Control of Private Higher Education 


state the only authority? On this the United States Supreme 
Court has rendered an opinion. 


The granting of such right or privilege [the right or privilege to be 
a corporation] rests entirely in the discretion of the State.” [5] 


That this authority rests in the state is evident in the practice of 
the states. It will be observed in the succeeding chapter that 
every state exercises this authority in providing for the incorpora- 
tion of institutions either through special enactment of the legis- 
lature of the state or through general corporation laws of its 
creation. 


THE AUTHORITY OF THE STATE TO PLACE LIMITATIONS UPON, THE 
POWERS OF AN INSTITUTION AT THE TIME OF ITS INCORPORATION 


Since it is in the discretion of the state to grant the right to be a 
corporation, what authority has the state, in the exercise of this 
discretion, to place limitations upon the powers of the institution at 
the time of its incorporation? In other words, how far can the 
state confine the activities of a corporation by defining in its char- 
ter the bounds within which it can operate? 

The state must grant certain powers. There is implied in the 
act of incorporating the granting of capacities that will enable the 
corporation to do business in the pursuance of its purpose. These 
capacities are evident in the charters of the colleges and in the 
corporation laws of the states. North Dakota, for instance, in its 
laws lists them as follows: 


1. To have succession by its corporate name for the period . . . if 
not a corporation for profit, perpetually, subject to the power of the 
legislative assembly as herein before declared. 

2. To sue and be sued in any court. 

3. To make and use a common seal and alter the same at pleasure. 

4. To purchase, hold, transfer and convey such real and personal 
property as the legitimate purposes of the corporation may require, 
not exceeding in any case any amount limited by law. 

5. To appoint such subordinate officers and agents as the business 
of the corporation may require, and to allow them suitable com- 
pensation. 

6. To make by-laws not inconsistent with the law of the land for the 


management of its property, the regulation of its affairs, and for the 
transfer of its stock. 


1 State’? includes the District of Columbia. 


Control as Defined in Decisions of the U. S. Supreme Court 15 


7. Lo admit stockholders or members to sell their stock or shares for 
the payment of assessments or installments. 

8. To enter into any obligations or contract essential to the trans- 
acting of its ordinary affairs, or for the purposes of the corpora- 
tion. [6] 


The donor has rights in directing the use of his charity. What 
is the right of the donor in directing the use of his charity? Has 
the one who gives property in the founding of au institution any 
right to say how the property shall be used and who shall manage 
it? Webster states in his plea before the Supreme Court of the 
United States in defense of Dartmouth College: 


In early times, it became a maxim, that he who gave the property 
might regulate in future. Cwuius est dare, ecius est disponere. The 
right of visitation descended from the founder to his heir as a right of 
property, and precisely as his other property went to his heir; and in 
default of heirs it went to the king, for want of heirs, as all property 
goes to the king. The right of visitation arises from the property. It 
grows out of the endowment. The founder may, if he please, part 
with it, at the time he establishes the charity, and may vest it in 
others. Therefore, if he chooses that governors, trustees or overseers 
should be appointed in the charter, he may cause it to be done, and his 
power of visitation will be transferred to them, instead of descending 
to his heirs. The persons thus assigned or appointed by the founder 
will be visitors with all the power of the founder. [7] 


This policy still exists. 
Zollman says: 


An individual who conveys property in trust for charitable purposes 
has, unless he should assign it to another, what is called visitorial 
power, in the exercise of which he may prescribe rules for its manage- 
ment and for the administration of the trust, and may govern and 
control the trustees, inspect their proceedings, and correct abuses in 
their conduct. [8] 


The purposes for which the donor may direct the use of his 
charity are varied. He may found or support a particular school, 
college, or university ; he may confine his charity to a special need, 
as a scholarship, or a chair of theology ; or he may direct it for the 
benefit of a definite group, as young men in naval architecture. [9| 


16 State Control of Private Higher Education 


The great variety of purpose affirms the policy that the donor may 
exercise large direction in the use of his charity.* 

The donor may be an individual or the state. The right of the 
donor to direct the use of his charity applies whether the donor is 
an individual, or whether the donor is the people of the state acting 
through their state legislature. An example of the latter is the 
state university. The legislature of the state, exercising its right 
for the people as the donor, creates the university by act of legis- 
lation, defines its purpose, method of management, and powers; 
provides for the appointment of the trustees by some state agency, 
usually the governor; and periodically appropriates money for its 
support. 

It has been noted that the donor may assign his right of visita- 
tion to others. Has the state done so as regards the state uni- 
versity? As a donor, the state could assign its right to direct the 
use of its charity, but in practice it does not. It receives reports, 
directs policies through appropriations, appoints or elects the mem- 
bers of the board of trustees, and passes legislation in furthering 
the purpose of the institution. 

But in the case of the private institution, where the donor is an 
individual or group of individuals, the practice is quite the con- 
trary. The customary procedure in the United States is for the 
donor or donors, under a charter and through the act of incorpora- 
tion to confer upon the members of the corporation full powers 
to manage the use of the property, and, in addition, power of visita- 
tion. [ro] The donor may, as frequently happens, become a mem- 
ber of the board of trustees, but when he transfers his right to 


1A recent decision of the Massachusetts Supreme Court, September 19, 1925, Up- 
held the inviolability of the purpose of the founders of Andover Theological Seminary 
in promoting orthodox, trinitarian, Congregationalism. The Visitors of the Seminary, 
a body of three, especially. charged with the responsibility of seeing that the Trustees 
of the Seminary did not depart from the purpose, objected to a close affiliation 
which had been entered into by the Trustees of the Seminary and the President and 
Fellows of Harvard University, whose divinity school is undenominational, on the 
grounds that such affiliation was contrary to the wishes of the founders. The court 
supported the contention. of) the Visitors.) The following is quoted from the 
decision: 

Owners of property may give it in trust to maintain and inculcate any 
doctrine of Christianity or to promote and extend any particular Christian de- 
nomination by training ministers to preach its tenets; and such gift constitutes 
a charity which will be upheld and protected. 

In charity established for training of ministers of religion, not the slightest 
consideration can be given to present prevalence of religious creed or doctrines 
to be taught, or to our own beliefs concerning them; the nature of the institution, 
as declared by the founders, is the single end to be sought. 

When the purpose of the charity has become impracticable of execution, on 
prepey proceeding, validity may be directed into another channel under doctrine 
of cy-pres. 

(Visitors of Theological Institution in Phillips Academy in Andover ws. Trustees 
of Andover Theological Seminary. Northeastern Reporter, Vol. 148, Sept., 1925s 


pp. 900 ff.) 


Control as Defined in Decisions of the U. S. Supreme Court 17 


direct the use of his charity to the corporation, he has then no 
power other than as a member of the board. 

The right of visitation is exercised in various ways. Thinking 
is made clearer on the right of the donor to direct the use of his 
charity by citing several ways in which it is exercised. Four ways 
follow,—two in which the state participates with individuals as 
donors ; two in which individuals alone participate. 


1. Without state participation 
a. The donor directs the use of his charity. Illustration: 
Stanford University. 
b. The donor assigns to the trustees the direction of the use 
of his charity. Illustration: University of Chicago. 
2. With state participation 
a. The private donors through their assignees, and the state 
as a donor exercise direction over their respective portions 
of the charity. Illustration: Rutgers University. 
b. The private donors and the state both assign the direction 
of their respective charities to the board of trustees. Illus- 
tration: Johns Hopkins University. 


The donor directs the use of his charity. Illustration: Stanford 
University (1 [a] ).—In 1885, Leland Stanford and Jane Lathrop 
Stanford “desiring to promote the public welfare by founding, 
endowing, and having maintained upon (their) estate known as 
the Palo Alto Farm, and situated in the counties of San Mateo and 
Santa Clara, State of California . . . a university for both sexes, 
with the colleges, schools, seminaries of learning, mechanical in- 
stitutes, museums, galleries of art, and all other things necessary 
and appropriate to a university of high degree” [10] secured from 
the state of California the passage of an act, March 9, enabling 
them to found the institution which now bears the name of Leland 
Stanford Junior University. Recognition by the state of the right 
of Mr. and Mrs. Stanford to direct the use of their donation is 
evident in the enabling act: 

Sec. 3. The person making such grant may therein designate: [There 
follow provisions for the nature and object of the institution, the 
name of the institution, appointment of trustees, and location of the 
institution. | 

Sec. 5. The person making such grant, by a provision therein, may 
elect, in relation to the property . . . conveyed and in relation to the 
erection, maintenance and management of such institution or institu- 


18 State Control of Private Higher Education 


tions, to perform during his life, all the duties and exercise all the 
powers which, by the terms of the grant, are enjoined upon and vested 
in the Trustee or Trustees therein named. If the person making such 
grant, and making the election aforesaid, be a married person, such 
person may further provide that if the wife of such person survive 
him, then such wife during her life, may, in relation to the property 
conveyed, and in relation to the erection, maintenance, and management 
of such institution or institutions, perform all the duties and exercise 
all the powers which, by the term of the grant, are enjoined upon and 
vested in the Trustee or Trustees therein named, and in all such cases 
the powers and duties conferred and imposed by such grant upon the 
Trustee or Trustees therein named, shall be exercised and performed 
by the person making such grant, or by his wife during his or her 
life, as the case may be; provided, however, that upon the death of 
such person, or his surviving wife, as the case may be, such powers and 
duties shall devolve upon and shall be exercised by the Trustees named 
in the grant and their successors. 

Sec. 6. The person making such grant may therein reserve the right 
to alter, amend or modify the terms and conditions thereof and the 
trusts therein created, in respect to any of the matters mentioned or 
referred to in subdivisions one to six inclusive, of section two (three) 
thereof; and may also therein reserve the right, during the life of such 
person or persons, of absolute dominion over the personal property 
conveyed, and also over the rents, issues, and profits of the real prop- 
erty conveyed, without liability to account thereof in any manner 
whatever and without any liability over against the estate of such 
person; and if any such person be married, such person may, in said 
grant, further provide that if his wife survive him, then such wife, 
during her life, may have the same absolute dominion over such per- 
sonal property, and such rents, issues and profits, without liability to 
account thereof in any manner whatever, and without liability over 
against the estate of either of the spouses. [12] 


Briefly, from above, it is observed that the state of California 
granted authority to the donors to exercise without assignment to 
trustees, if they wished, absolute control over their charity. They 
were empowered to designate the purpose, nature, and location of 
the institution ; to define the managing board, and, if they desired, 
exercise sole power of management; and to alter or modify the 
terms and conditions of the organization and conduct of the 
institution. This was an exceedingly generous grant of authority 
and recognition of the rights of the donor. 


Control as Defined in Decisions of the U. S. Supreme Court 19 


Mr. and Mrs. Stanford, in accordance with this act, founded 
Leland Stanford Junior University by a decree executed Novem- 
ber, 1885, and filed in the office of the Recorder of Santa Clara 
County. They conveyed to twenty-four trustees, whom they 
named, and their successors certain specified property, gave them 
power to manage and control the institution and the trust property, 
to make by-laws, to employ officers, and do 


all things necessary to the proper exercise and discharge of their 
trust; subject, however, to the reservation that the grantors may elect 
to control the property and the execution of the trust during their 
TVeST Ail. 


and to the right to 


alter, amend or modify the terms and conditions of this grant, and 
the trusts therein created, in respect to the nature, object and purposes 
of the institution founded, the powers and duties of the Trustees, the 
manner in which, and to whom, they shall account, the mode and 
manner, and by whom, the successors shall be appointed, the rules and 
regulations for the management of the property conveyed, the time 
when, and the character and extent of, the buildings which shall be 
erected, the right to provide for trades and professions which shall be 
taught in the institution, and the terms upon which scholarships shall 
be founded. [13] 


Other restrictions were made, not necessary to include here for 
the purpose of illustration. | 

Mrs. Stanford made several amendments to the founding grant. 
The decree of 1902, October 3, not only provided minor changes 
in the administration of the property but recited her desires con- 
cerning the larger policies of the institution in maintaining the 
highest standards of education and public codperation. In her last 
decree, June 1, 1903, she relinquished all her rights to the property 
and vested sole management in the trustees. [14] 

An illustration of a different character, in which the state recog- 
nizes the privilege of the donor, is the University of Minnesota. 
During the first years of the life of the institution when finances 
were sought for its development, the state of Minnesota, in the 
Act of 1860, inserted the following clause to encourage 
contributions: 


Any person or persons contributing a sum of not less than fifteen 
thousand (15,000) dollars, shall have the privilege of endowing a Pro- 


20 State Control of Private Higher Education 


fessorship in the University, the name and object of which shall be 
designated by the Board of Regents. Said person or persons shall 
have the right to nominate Trustees for the care of the endowment, 
also an individual to fill the Professorship, and a Regent who shall 
have the same rights and privileges as those appointed in behalf of 
the State. [15] 


Such practice has been discontinued. The act of 1868 omitted the 
right to nominate trustees and regent and to name the pro- 
fessor. [16] 


The donor assigns to the trustees the direction of the use of his 
charity. Illustration: University of-Chicago (1 [b]).—In his letter 
of December 13,1910, to the President and Trustees of the Uni- 
versity of Chicago, making his final gift of approximately 
$10,000,000 to the University, John D. Rockefeller assigned the 
direction of his charity to the trustees in these words: 


In making an end of my gifts to the University, as I now do, and 
in withdrawing from the board of trustees my personal representatives, 
whose resignation I enclose, I am acting on an early and permanent 
conviction that this great institution, being the property of the people, 
should be controlled, conducted, and supported by the people, in whose 
generous efforts for its upbuilding I have been permitted simply to 
cooperate. [17] 


The letter contains the desire that $1,500,000 be used for the erec- 
tion and furnishing of a university chapel. Apart from this the 
remainder of the funds are to be used “in the discretion of Trus- 
tees, for lands, buildings, or endowment, but no part of the prin- 
cipal sum shall be used for current expenses.” [18] It is the 
practice to assign to the trustees of an institution, within the pur- 
pose, the sole direction of the use of the donation. Examination 
of the donations to various colleges and universities supports this 
view. 

Restricting the use of a donation to a specific purpose at the 
same time limits the use of the fund if the purpose ceases to 
command the prominence it had at the time the gift was made. 
Two practices at present obviate this. When a gift is made for a 
specific purpose, it is becoming the policy to insert in the letter of 
grant a clause permitting the trustees to use the donation for other 
purposes. This policy is followed by the Carnegie and Rockefeller 
Foundations. The following clause from the “Act of Incorpora- 


Control as Defined in Decisions of the U.S. Supreme Court 21 


tion of the Carnegie Foundation for the Advancement of Teach- 
ing” illustrates : 


In general, to do and perform all things necessary to encourage, up- 
hold, and dignify the profession of the teacher and the cause of higher 
education in the United States, the Dominion of Canada, and New- 
foundland aforesaid, and to promote the objects of the Foundation, 
with full power, however, to the Trustees . . . to modify the condi- 
tions and regulations under which the work shall be carried on, so as 
to secure the application of the funds in the manner best adapted to 
the conditions of the time: And provided, that such corporation may 
by a vote of two-thirds of the entire number of Trustees enlarge or 
vary the purposes herein set forth, provided that the objects of the 
corporation shall at all times be among the foregoing, and kindred 
thereto. [18] 


The other practice is to give the donation as an endowment which 
trustees use at their discretion. During the year, 1919-1920, there 
was given by various benefactors as endowment to institutions of 
higher education the sum of $50,906,762. [19] 

The private donors through their assignees, and the state as a 
donor exercise direction over their respective portions of the char- 
ity. Illustration: Rutgers University (2 [a]).—Rutgers Univer- 
sity was founded as Queens College under a charter from George 
III in 1766. The petitioners for the charter were ministers and 
members of the Dutch Reformed Church in New York and New 
Jersey; and the primary purpose of the institution was to provide 
instruction in the “learned languages and other branches of useful 
knowledge” (especially to prepare “young men of suitable abilities 
... for the ministry”). [20] In 1825, after receiving generous 
gifts from Colonel Henry Rutgers of New York, the trustees 
secured an amendment from the legislature of New Jersey chang- 
ing the name from Queens College to Rutgers College. The board 
of trustees named in the charter of 1766 were forty-four in num- 
ber, of whom four were ex-officio officers of the state—the gov- 
ernor, president of the council, chief justice, and the attorney 
general. [21] With the exception of the president of the council 
the composition of the board has not changed. To this board the 
several donors, including Colonel Rutgers, assigned their right in 
the direction of the use of their gifts. 

In 1862, New Jersey became the beneficiary of script for public 
lands granted to the state by act of Congress, for the advancement 


22 State Control of Private Higher Education 


of instruction in agriculture and the mechanic arts. Rutgers Col- 
lege was designated by the legislature of New Jersey in 1864 as. 
the institution to receive the interest from the funds derived from 
the sale of the script, under the condition that the trustees devote 
the interest wholly and exclusively to the purpose designated by 
the act of Congress, and “in that department of Rutgers College 
known as Rutgers Scientific School.” [22] Through this grant 
the state of New Jersey, acting for the United States, became a 
donor to the property of Rutgers College. 

In order that the state retain supervisory control over the funds 
in question the state provided in the Act of 1864 for a board of 
visitors “appointed by the governor with the advice and consent of 
the senate, consisting of ten persons, two from each congressional 
district . . . who shall hold their office respectively for five years,” 
[23] and defined their powers as follows: 


It shall be the duty of the board of visitors to visit the said school 
(Rutgers Scientific School) at least twice in each year, and to make 
report thereon to the legislature during the second week of the annual 
session. [23] 


. . . the board of visitors shall possess general powers of supervision 
and control, and shall report to the legislature such recommendations 
as to them may seem proper. [24] 


Rutgers University, then, illustrates the situation in which the 
state exercises supervision over the charity for which it is re- 
sponsible, the trustees exercising it for the remaining donors. 


The private donors and the state both assign the direction of 
their respective charities to the board of trustees. Illustration: 
Johns Hopkins Unwwersity (2 [b])—Johns Hopkins University 
was incorporated August 24, 1867, at Baltimore, Maryland, with 
a board of trustees of twelve members, life tenure, to direct the use 
of the donation of Johns Hopkins, a merchant of Baltimore, who 
bequeathed the greater part of his estate for the establishment of 
a university and hospital and for the promotion of education in 
Maryland. Other gifts were added from time to time. In addi- 
tion, the state legislature of Maryland made generous appropria- 
tions to the university. By act of the legislature at its session of 
1922, the sum of $600,000 was appropriated for the purpose of 
constructing and equipping a building for a school of technology, 


Control as Defined in Decisions of the U. S. Supreme Court 23 


‘with an annual appropriation of $50,000 for maintenance. The 
legislature further appropriated annually $25,000 for general pur- 
poses for 1923 and 1924. These grants were given without any 
reserved power or provision for visitation by the state. [25] It is 
not necessary to cite further donations from the state. These are 
sufficient to show that it is the practice of the state of Maryland 
to make donations to Johns Hopkins University without retaining 
control over their use. By this procedure the state assigns its right 
of visitation, as do the private donors, to the trustees of the 
institution. 

It may now be summarized from the foregoing that the donor, 
whether private or state, has the right to direct the use of his 
charity. This he exercises himself or assigns to the trustees of 
the institution. 

The state has authority to place limitations on the powers of the 
institution at the time of its incorporation. The question under 
consideration is this: To what extent may the state, in the exercise 
of its authority to grant the right to be a corporation, place limita- 
tions upon the powers of the institution at the time of incorpora- 
tion? It has been noted that certain powers must be granted to 
enable the corporation to do business, and that the donor has a 
right to determine the use of his charity. In these two respects, 
then, the state is circumscribed in the limitations which it may 
place upon the corporate powers. But, in the discharge of its 
responsibility for the welfare of the state, it may make any limita- 
tion which public policy dictates. The Supreme Court of the 
United States has rendered an opinion in the case of Horn Silver 
Mining Company versus New York, 143 U. 5. 313, in .these 
‘words: 


The granting of the rights and privileges which constitute the fran- 
chises of a corporation being a matter resting entirely within the 
control of the legislature, to be exercised in its good pleasure, it may be 
accompanied with any such conditions as the legislature may deem 
most suitable to the public interests and policy. 


That the state has not placed many limitations, and that the public 
interest and policy has not demanded it, with regard to institutions 
of higher education is evident in the laws of the several states 
governing their incorporation. It is observed in a subsequent 
chapter that over half the states place no limitations upon the 


24 State Control of Private Higher Education 


tenure of educational corporations, the amount of property which 
they hold, the requirements for admission and degrees, or the 
courses of study. (See page 58.) 

The answer to the question concerning the authority of the 
state to place limitations upon the corporate powers of an institu- 
tion of higher education may be thus briefly summarized. The 
state has power to place upon the corporate powers of an institu- 
tion of higher education at the time of its incorporation whatever 
limitations it deems best in the interest of public policy. In view, 
however, of the right of the donor to direct the use of his charity, 
and the policy of the state to promote education as a worthy char- 
ity, states have placed few limitations upon the powers of educa- 
tional corporations. 


THE AUTHORITY, OF THE, STATE TO EXERCISEYA CONTINUING CON] 
TROL OVER AN INSTITUTION AFTER INCORPORATION 


It was observed in answer to the preceding question, that the 
state has the authority to exercise an unlimited initial control over 
the corporate powers of an institution. When, however, the cor- 
porate powers are once granted to the institution by the state what 
continuing control may the state exercise over those powers? Can 
the state alter any of the vested rights in the charter of the institu- 
tion without the consent of the trustees? What are some of the 
vested rights ? 

In addition to the corporate powers cited in the laws of North 
Dakota (see page 14) the articles of incorporation of an educa- 
tional institution of higher education names the incorporators, 
institution, and the place of business; states the purpose of the 
institution ; defines the board of trustees as to number, method of 
appointment, and tenure; usually grants power to confer degrees, 
diplomas, and honors; and prescribes any conditions that either 
the state or the incorporators wish safeguarded. Within these 
vested rights the trustees conduct business. Can these rights be 
changed by the state without the consent of the trustees? 

The actton of the state is limted by the Federal Constitution. 
The state is not entirely sovereign in its power. Provisions were 
placed in the Federal Constitution that safeguard certain inalien- 
able rights. Two of the restrictions are pertinent to the considera- 
tion of the present question. The state cannot “deprive any per- 
son of life, liberty, or property, without due process of law.” [26] 


Control as Defined in Decisions of the U.S. Supreme Court 25 


Neither can the state pass any “law impairing the obligation of 
contracts.” [27] These restrictions are limits to the action of the 
state. 

The charter of an educational institution 1s a contract between 
the state and the incorporators. Citation is made again of the 
famous Dartmouth College case since it bears so directly upon the 
whole problem of state control over incorporated educational insti- 
tutions and applies so definitely to the question at hand. In this 
instance the state of New Hampshire by act of legislature, June 
27, 1816, attempted to change materially the charter of Dart- 
mouth College, granted by the Crown in 1769, 11 an effort to 
secure a greater control over the affairs of the College. The legis- 
lature sought to increase the number of trustees from twelve to 
twenty-one, to give the appointment of the additional number to 
the governor, and to provide for a board of overseers with power 
to “inspect and confirm, or disapprove and negative, such votes and 
proceedings of the board of trustees as shall relate to the appoint- 
ment and removal of the president, professors, and other permanent 
officers of the university, and determine their salaries ; to the estab- 
lishment of colleges and professorships, and the erection of new 
buildings.” [28] The board of overseers was to consist of twenty- 
five persons. The president of the senate and the speaker of the 
house of representatives of New Hampshire, and the governor and 
lieutenant-governor of Vermont were to be ex-officio members ; the 
remaining members were to be appointed by the governor and 
council of New Hampshire. 

The trustees of Dartmouth College did not accept the proposed 
change, whereupon the legislature passed amendments to carry the 
act into effect. The College objected further and the case came 
before the Supreme Court of the United States where the cause of 
the College was ably defended by Daniel Webster with Chief Jus- 
tice Marshall presiding. It was argued for the plaintiff that the 
College was a private corporation; that the charter was a contract 
within the meaning of the provisions of the Federal Constitution, 
Article 1, Section 10, and that the act of the legislature impaired 
the contract without the consent of the trustees. The defendants 
argued that the act of the legislature was not repugnant to the 
Constitution of the United States in that the contracts which the 
drafters of the Constitution had in mind were personal contracts 
and did not contemplate grants of power by a state; and that, since 


26 State Control of Private Higher Education 


the state had been a contributor to the support of the College, the 
College was not a private charity but a public institution and sub- 
ject to control by the state. [29] 

Chief Justice Marshall gave the decision for the court in 18109, 
digested as follows in the introduction to the case: 


The charter granted by the British crown to the trustees of Dart- 
mouth College in the year, 1769, is a contract within the meaning of 
the clause of the constitution of the United States (Art. 1, Sec. 10) 
which declares, that no state shall make any law impairing the obliga- 
tion of contracts. The charter was not dissolved by the revolution. 

An act of the state legislature of New Hampshire, altering the 
charter, without the consent of the corporation, in a material respect, 
is an act impairing the obligation of the charter, and is unconstitutional 
and void. 

Under its charter, Dartmouth College was a private and not a public 
corporation; that a corporation established for purposes of general 
charity, or for education generally, does not, per se, make it a public 
corporation, liable to the control of the legislature. [30] 


The influence of the Dartmouth College decision was far reach- 
ing. The decision, as well as the general intense discussion of the 
case at the time, helped to clear the confused thinking regarding 
the relationship of the state to its chartered institutions. Further, 
it gave a new direction to the efforts of the state to control institu- 
tions of higher education. Three results may be cited briefly to 
show the effect of the decision upon the question of continuing 
supervision by the state over incorporated institutions. 

The state cannot alter vested rights. First, the decision safe- 
guarded to the early colleges the rights which had been granted to 
them by the Crown or the Colonial governments, and guaranteed 
to all future institutions an independence in the exercise of char- 
tered rights without fear of state interference. Webster, in his 
plea before the court, pointed out possible evils, had the decision 
been otherwise. 


It will be a dangerous, a most dangerous, experiment to hold these 
institutions subject to the rise and fall of political parties, and the 
fluctuation of political opinions. If the franchise may be, at any 
time, taken away or impaired, the property also may be taken away, 
or its use perverted. Benefactors will have no certainty of effecting 
the object of their bounty; and learned men will be deterred from 
devoting themselves to the service of such institutions. . . . Colleges 


Control as Defined in Decisions of the U. S. Supreme Court 27 


and halls will be deserted by all better spirits, and become a theatre 
for the contention of politics. [31] 


Justice Story, associate upon the bench of the Supreme Court at 
the time of the Dartmouth College case, rendered an opinion sup- 
plementing that of Chief Justice Marshall in which he stated 
specifically some of the rights which the state can not alter: 

Unless a power be reserved for this purpose, the crown cannot, in 
virtue of its prerogative, without the consent of the corporation, alter 
or amend the charter, or divest the corporation of any of its franchises, 
or add to them, or add to, or diminish, the number of the trustees, or 
remove any of the members, or change or control the edministration 
of the charity, or compel the corporation to receive a new char- 
ter. [32] 


The state can found institutions and, control them. The second 
result of the Dartmouth College decision to be noted is its influence 
in suggesting the alternative that states could establish institutions 
entirely under their control. It is aside from this discussion to 
consider the development of state institutions of higher education, 
but it may set the question of the control of the private institu- 
tions in better relief to cite the suggestions in the decision which 
contributed toward the development of institutions under the 
state. It is certainly pertinent to contrast the difference between 
the authority of the state over its own institutions and those estab- 
lished under private charity. This difference is pointed out by 
Chief Justice Marshall as is shown by the following quotation 
from his decision: 

If the act of incorporation be a grant of political power, if it 
create a civil institution, to be employed in the administration of the 
government, or if the funds of the college be public property, or if the 
state of New Hampshire, as a government, be alone interested in its 
transactions, the subject is one in which the legislature of the state 
may act according to its own judgment, unrestrained by any limita- 
tion of its power imposed by the constitution of the United States. 
But if this be a private eleemosynary institution, endowed with a 
capacity to take property, for objects unconnected with government, 
whose funds are bestowed by individuals, on the faith of the charter; 
if the donors have stipulated for the future disposition and manage- 
ment of those funds, in the manner prescribed by themselves; there 
may be more difficulty in the case, although neither the persons who 
have made these stipulations, nor those for whose benefit they were 
made, should be parties to the cause. [33] 


28 State Control of Private Higher Education 


Again, he states: 


That education is an object of national concern, and a proper sub- 
ject of legislation, all admit. That there may be an institution, 
founded by government, and placed entirely under its immediate con- 
trol, the officers of which would be public officers, amenable exclusively 
to government, none will deny. [34] 


Just how far these statements contributed toward the development 
of state institutions cannot be determined. It is reasonable to 
believe that they must have been registered in the minds of the 
large number who were intent on securing a greater control over 
the private institutions, and who followed so closely the progress 
of the case as it was being considered by the Supreme Court. 

The state can reserve the right to alter or repeal the charter. 
A third result from the Dartmouth College decision was increased 
activity by the states in reserving to their legislatures the power to 
amend or repeal charters of colleges and universities established 
subsequent to the decision. Cases in point are: 


Georgetown University, Washington, D. C., 1789. 

Western Reserve University, Cleveland, Ohio, 1826. 

New York University, New York, N. Y., 1831. 

Tufts College, Massachusetts, 1850. 

Northwestern University, Chicago, Ill., 1851. (See Table I.) 


In the charters of these institutions is a clause reserving to the 
state legislature the power to change or repeal the charter. For 
instance, the charter of Tufts College, incorporated by the General 
Court of Massachusetts, 1850, contains this provision: 


The legislature of this Commonwealth may grant any further powers 
to alter, limit, annul, or restrain any of the powers vested by this act 
in the said corporation, as shall be found necessary to promote the 
best interests of said college, and more especially may appoint and 
establish overseers or visitors of said college, with all necessary powers 
for the better aid, preservation, and government thereof. [35] 


It cannot be said that this right to amend, etc., had its origin in the 
Dartmouth College decision. The state of Connecticut had re- 
served in the charter of Yale College, 1745, that all the laws made 
by the “President and Fellows” “be laid before (the) assembly 
as often as required . . . to be repealed or disallowed by (the) 
assembly when they shall think proper.’ [36] And the state of 


Control as Defined in Decisions of the U. S. Supreme Court 29 


New York in establishing the Regents of the University of New 
York, 1784, empowered them not only to grant charters but to 
amend or repeal them. [37] Yet in the Dartmouth College de- 
cision, it was pointed out by Justice Story that it was necessary 
for the state, if it wished to continue control, to make the reserva- 
tion in the charter. His words are: 


If the state legislature mean to claim such authority (referring to 
taking away powers or otherwise exercising restraints) it must be re- 
served in the grant. [38] 


The foregoing observations on the Dartmouth College decision 
may now be summarized under three points: 

1. The charter granted by a state to an incorporated institution 
is a contract and the vested rights in the charter cannot be 
altered without the consent of the trustees. 

2. The state may establish institutions of its own over whose 
transactions it may act according to its own judgment. 

3. The state may reserve in the charter of the institution the 
right to amend or repeal it. 

The state is limited in its power to amend a charter. Is the 
state, acting within its authority to amend or repeal a charter when 
so reserved, limited in any way in the changes that it may make? 
In the case of Berea College versus Kentucky the question of the 
power of the state to amend or repeal was under consideration. 
Berea College was organized under the authority of an act for the 
incorporation of voluntary associations, approved March 9, 1854 
(2 Stanton Rev, Stat. Ky., 553), which in terms reserved to the 
General Assembly “the right to alter or repeal the charter of any 
association formed under the provisions of this act.’ In June, 
1899, the College was reincorporated (provisions of Ky. Stat., 
Chap. 32, Art. 8), the charter defining its purpose in these words, 
“Its object is the education of all persons who may attend.” The 
Constitution of 1891 provided in its bill of rights (No. 3) that 
“every grant of a franchise, privilege or exemptions shall remain, 
subject to revocation, alteration or amendment.” (Carroll’s Ky. 
Stat., 1903, p. 86.) The College was operating under these 
reservations. 


Acts of Kentucky, 1904, Section 1, Chap. 85, p. 181, prescribed: 


That it shall be unlawful for any person, corporation or association 
of persons to maintain or operate any college, school or institution 


30 State Control of Private Higher Education 


where persons of the white and negro races are both received as 
pupils for instruction, and any person or corporation who shall operate 
or maintain any such college, school or institution shall be fined 
DL,OOO HM a: 


The College did receive both races for instruction and was in- 
dicted by the grand jury of the county in October, 1904. It was 
decided in the court that the College was guilty of violating the 
statutes of the state, and the fine was imposed. The College then 
carried the case to the Supreme Court of the United States which 
sustained the decision in November, 1908. It was held that the 
state acted within its power under the reservation to amend, and 
that the action taken did not impair the object of the grant or 
vested rights contained in the charter. [39] Of special application 
here is that part of the opinion which points out the limitation of 
the state in its power to amend. Justice Brewer made this 


XL 


statement : 


It is undoubtedly true that the reserved power to alter or amend is 
subject to some limitations, and that under the guise of an amendment 
a new contract may not always be enforceable upon the corporation 
or the stockholders; but it is settled that a power reserved to the 
legislature to alter, amend or repeal a charter authorizes it to make 
any alteration or amendment of a charter granted subject to it, which 
will not defeat or substantially impair the object of the grant, or any 
rights vested under it, and which the legislature may deem necessary 
to secure either the object or any public right. [4o] 


Freund supports this position. He says: 


The power to alter or amend does not extend to the taking of the 
property either by confiscation, or indirectly by other means... in 
other words, the legislature may not destroy vested rights. [41] 


It is therefore evident that the state where it has reserved the 
power to amend a charter is limited to action which does not 
impair substantially the rights vested in the charter or the object of 
the grant. 

The courts exercise a continuing control over corporations. It 
is possible that trustees may abuse the rights and privileges granted 
to them in the charters of the institutions they manage or misuse 
the funds entrusted to them. What guarantee is there that the 


Control as Defined in Decisions of the U.S. Supreme Court 31 


wish of the donors will be carried out or that public interests will 
be safeguarded? On this point Zollman says: 


Being public utilities of a very high order, charities are intimately 
associated with the state which exercises over them through its courts 
a watchful supervision, so that their property, funds and revenues 
shall not be diverted to any improper purpose, and that trustees and 
agents shall perform the duties assigned to them with honesty and 
fidelity, and for the best advantage of the charitable uses designed by 
the donor or donors. [42] 


Again the United States Supreme Court says: 


When a charitable trust has been fully constituted, and the funds 
have passed out of the hands and control of the donors, and into the 
hands of the proper institution, or organization, intended for its admin- 
istration, the Court of Chancery, or some analogous jurisdiction, be- 
comes its legal guardian and protector, and will take care that the 
objects of the trust are duly pursued, and the funds rightly appro- 


priated. [43] 


Zollman says further with reference to the obligation of the state 
to safeguard the use of the trust: 


In order that the trust may be maintained, it is, therefore, not only 
the right, but the duty of the state, through its law officers, to take 
action for their maintenance and enforcement. The duty is exercised 
in America as in England through the attorney general, who, therefore, 
is a proper, though he may not be necessary, party plaintiff or de- 
fendant as the representative of the public. [44] 


These quotations are sufficiently clear without turther comment. 
The court is the proper agency to determine whether trustees are 
performing their duties with honesty and fidelity. It is the duty of 
the state through its officers to take action that will maintain the 
trust. 

A recent case before the Supreme Court of the United States 
illustrates the continuing control of the state over educational 
corporations through the courts. The National Association of 
Certified Public Accountants was incorporated under the Code of 
the District of Columbia, Section 559, which authorizes certain 
citizens of the United States, 


a majority of whom being also citizens of the District, who desire to 
associate themselves for benevolent, charitable, educational, literary, 


32 State Control of Private Higher Education 


musical, scientific, religious, or missionary purposes, and_ societies 
formed for mutual improvement or for the promotion of the arts, to 
form a corporation by filing in the office of the recorder of deeds a 
certificate in writing, which shall state the name adopted, the term 
for which the corporation is organized, its particular business and 
objects, and the number of its managers for the first year of its 
existence. [45 | 


No mention whatever of degrees is made in this section of the 
code. ‘The certificate which was filed by the organizers of the 
corporation provided that when the members of the corporation 
presented 


satisfactory evidence of knowledge in the theory and practice of 
accounting and... satisfactorily passed the prescribed qualifying 
examination of the association [45] 


the corporation would 


admit said members to the degree of certified public accountant. [45] 


During nine months of the existence of the corporation more 
than 2,500 certificates were issued at ten dollars apiece. It was 
suspected that degrees were granted without satisfactory exam- 
ination of the applicant’s qualification. Persons residing in Cali- 
fornia presented to the corporation the name of a fictitious person 
and on recommendations, wholly unknown to the corporation, a 
certificate was issued. 

The district attorney of the District of Columbia filed a bill 
asking for an injunction prohibiting the National Association of 
Certified Public Accountants from exercising the power to confer 
the degree of certified public accountant, or any other degree, upon 
any person, on the ground that it had no lawful right to do so. 
Appeal from the supreme court of the District of Columbia was 
made February 14, 1923. Decision was rendered by the Supreme 
Court of the United States on June 4, 1923. It was held that the 
corporation had no power to confer degrees since it was not ex- 
pressly conferred. [46] It was also stated as an opinion that 


. where a corporation having the power to confer degrees sells its 
degrees, without reference to the buyers’ qualifications, its charter 
may be forfeited for misuse of its franchise. [46] 


In this case the corporation assumed powers not expressly granted 
and misused its franchise by granting degrees without due con- 


Control as Defined in Decisions of the U.S. Supreme Court 33 


sideration to the qualification of the person seeking the degree. 
The public interest was safeguarded by the court under action 
instituted by the district attorney. 

The state may exercise regulatory control. The authority of the 
state to exercise a continuing control over incorporated institutions 
of higher education through reserved power to amend or repeal a 
charter has just been considered. It may be enquired further: 
What continuing control may a state exercise over an educational 
corporation by regulatory legislation in the interest of public wel- 
fare? For instance: Can a state require such an institution to 
maintain instruction of a certain standard as prerequisite to grant- 
ing a degree? Can the state require the institution to submit 
reports on its business, including incomes and expenditures, enroll- 
ment, and personnel? Can the state empower an agency to visit 
and inspect and report on the condition of the institution ? 

That states are so authorized may be inferred from the fact that 
several states do provide regulatory control over incorporated 
institutions of higher education and place responsibility for it in 
some state agency, usually the state board of education. The 
earliest and most extensive provision in this regard is the Regents 
of the University of New York, the educational agency of the 
state of New York, which has power to maintain standard instruc- 
tion, to visit and inspect, and to report on the condition of the 
institutions of the state. Other states providing some or all of 
these powers are: Arkansas, Maryland, Michigan, Minnesota, New 
Jersey, North Carolina, Ohio, and Pennsylvania. The provisions 
in the laws of these states are presented in Chapter III. (See 
page 68.) 

What opinions from Supreme Court decisions indicate the au- 
thority of the state to regulate incorporated institutions of higher 
education? Unfortunately, the writer has not located any such 
decisions bearing directly on state regulation over the institutions 
of higher education. However, certain opinions in the case of the 
Oregon Public School Law (Society of the Sisters of the Holy 
Names, etc. versus Pierce, 296 Federal 928) recently decided, June, 
1924, are stated generally and may be said to apply in principle to 
higher education.t_ There was in question the authority of the state 
to require all children, with a few exceptions, between the ages of 


1 The institutions represented by the Society of the Sisters of the Holy Names are 
incorporated. 


34 State Control of Private Higher Education 


eight and sixteen to attend public schools. The people of Oregon 
through an initiative petition approved such action. The affirma- 
tive argument printed in the official pamphlet prior to the election, 
after stating a belief in “the free and compulsory education of the 
children of our nation in public primary schools supported by 
public taxation,” appealed to the people “to mix the children of 
the foreign-born with the native-born, and the rich with the 
poor,’ and “to mix those with prejudices in the public school 
melting pot for a few years while their minds are plastic, and 
finally bring out the finished product—a true American... . 
A divided school can no more succeed than a divided nation.” [47 | 
This was an effort of the state to regulate education in the interest 
of public welfare. It was held in the decision, that the act was 
a violation of the Constitutional Amendment I4, in that it de- 
prived private and parochial schools of property without due 
process of law, and infringed the liberty of parents and guardians 
in sending their children and wards to such schools as they might 
desire. [48] 

The following statements in the decision bear directly upon the 
authority of the state to regulate education. The state may rea- 
sonably regulate: 


No question is raised concerning the power of the state reasonably 
to regulate all schools, to inspect, ‘supervise and examine them, their 
teachers and pupils; to require that all children of proper age attend 
some school, that teachers shall be of good moral character and 
patriotic disposition, that certain studies plainly essential to good citi- 
zenship must be taught, and that nothing be taught which is manifestly 
inimical to public welfare. [49] 


The state cannot standardize its children: 


The fundamental theory of liberty upon which all governments in 
the Union repose excludes any general power of the state to standard- 
ize its children by forcing them to accept instruction from public 
teachers only. The child is not the creature of the state; those who 
nurture. him and direct his destiny have the right, coupled with the 
high duty, to recognize and prepare him for additional obligations. [50] 


The enactments of a state, if unwarranted, will be set aside: 


The state legislature is not the final judge of limitations of the 
police power, but its enactment will be set aside when found to be an 
unwarranted, arbitrary interference with the constitutional right to 


Control as Defined in Decisions of the U.S. Supreme Court 35 


carry on a lawful business or occupation, and to use and enjoy prop- 
erty. [51] 

From the foregoing it is observed that the state has reasonable 
authority to regulate all schools, both public and private, but in 
doing so must not arbitrarily interfere with constitutional rights. 
In the exercise of this authority, as it pertains to institutions of 
higher education, Freund says: 


The state has power to control the education of minors, and in doing 
so may further the interest of nationality, but where minors are not 
concerned, the pursuit of truth and learning must be absolutely free. 
The principles are so fully recognized by the practice of legislation 
that they stand unquestioned, even if lacking express judicial con- 
firmation. [52] 


SUMMARY 


Authority rests with the state to incorporate educational institu- 
tions. In the exercise of this authority it may place upon the 
corporate powers of the institution at the time of incorporation 
whatever limitations it deems best in the interest of public policy. 
However, the state must grant to the corporation the powers neces- 
sary for it to do business in the pursuance of its purpose. It 
respects the right of the donor to direct the use of his charity, 
either himself or through trustees to whom he assigns his right. 

After incorporation the state may exercise a continuing control 
through a reserved power to alter or repeal the charter, through the 
courts, or through general regulatory legislation. The exercise of 
this continuing control, even though power to alter is reserved, 
cannot defeat or substantially impair the object of the grant or any 
rights vested under the charter. Control through the courts is 
directed primarily to safeguarding the proper pursuance of the 
objects of the trust and the right appropriation of the funds. 
General regulatory legislation has for its purpose the maintenance 
of instruction of a quality in keeping with public welfare. How- 
ever, any enactments must not be an unwarranted, arbitrary inter- 
ference with the constitutional right to carry on a lawful business, 
and to use and enjoy property. 


REFERENCES 


1. Freunp, E. The Legal Nature of Corporations, p..7. 
2. 4 Wheat 636, “Dartmouth College vs. Woodward.” 
3. Encyclopedia Brittanica, 1910 Ed. “Corporations,” p. I9I. 


State Control of Private Higher Education 

. Freunp, E. Police Power, par. 358. 

211 U.S. 54, “Berea College vs. Kentucky.” 

North Dakota, Compiled Laws, 1913, Sec. 4533. 

4 Wheat 564, “Dartmouth College vs. Woodward.” 

ZOLLMAN, C. F. American Law of Charities, par. 603. 

Ibid., 300, 301. 

Ibid., 604. 
. Stanford University, Trustees’ Manual of Legislation, etc., 1920, p. 5I. 
. 1bid.; pp> 13-16. 


Sal Od. Pee OO; 
. Lbid., pp. 62-88. 


University of Minnesota, Laws and Regulations, “Governing Act of 
LOGO} 2 Pt3207- 

Ibid., “Act of 1868,” p. 210. 

GopsPEED, T. W. The Story of the University, pp. 182, 183. 
Carnegie Foundation for the Advancement of Teaching. “Act of In- 
corporation,” etc., p. 2. 

U. S. Bureau of Education. Bulletin 1922, No. 28, Statistics of 
Universities, Colleges, and Technical Schools, p. 9. 

Rutgers College. Charter and Laws Relating to Rutgers Scientific 
DCMOOL,) DNS: 


SU biden lO, 
MiG p27: 
wu ilbids pii28, sec. +7. 


Ibid., p. 28, sec. 8. 


. Johns Hopkins University. University Register, 1924-1925, pp. 3-8. 


Federal Constitution, 14 Amendment, Sec. 1. 

Federal Constitution, Art. 1, Sec. Io. 

4 Wheat 541. “Dartmouth College vs. Woodward.” 
Ibid., 551. 


UNG aah Misses, 

20:1 D1 94,508: 

 Lb1d.3 675. 

Mtl Did: 020; 

sel Did. nO 3a. 

. Tufts College, Charter of Trustees of Tufts College, January, 1924, 


Pp. 5 


f CLEWS, E. Educational Legislation and Administration of Colomal 


Governments, p. 152. 

U. S. Bureau of Education. “Circular of Information,” No. 3, 1900. 
“The University of the State of New York,” p. 4o ff. 

4 Wheat 712. “Dartmouth College ws. Woodward.” 


. 211 U.S. 45, “Berea College vs. Kentucky.” 

ibid Dp. 57: 

. Freunp, E. Police Power, par. 363. 

. ZOLLMAN, C. F. American Law of Charities, par. 610. 
t 104 U.S. 727. “Printing House vs. Tristees.”” 


ZoLLMAN, C. F. American Law of Charities, par. 613. 


. 292 Federal 669. “National Association of Certified Public Ac- 


countants vs. United States.” 


. Lbid., 668. 
. Oregon School Cases, Complete Record, 1925, pp. 732-733. 
. 296 Federal 928-9. “Society of the Sisters of the Holy Names, 


etc. ws. Pierce.” 


. Supreme Court, No. 583 and 584, October Term, 1924, p. 5. 
. 296 Federal 529. “Society of Sisters of the Holy Names, etc. ws. 


Pierce.” 


Ota p26: 
. Freunp, E. Police Power, par. 479. 


CURE Mee el 


STATE CONTROL AS PROVIDED IN THE LAWS OF 
THES TATE 


BRIEF 


A. Laws under which the states incorporate institutions of higher 
education : 
The state incorporates an institution either through special act of the 
legislature or through general corporation law. 


B. Initial control: 


Fewer than one-half of the states provide for special approval of 
the articles of incorporation. 

Approval by the educational agency is required in ten states. 

A few states only prescribe minimum requirements in their laws as 
regards property, number of professors, courses of study, admissions, 
and degrees. 


C. Continuing control: 


Nine states limit the tenure of incorporated institutions. 

Six states reserve to the legislature the right to amend or repeal 
the articles of incorporation. 

Seven states provide regulatory control through the educational 
agency. 


The preceding chapter defines the authority of the state to in- 
corporate institutions of higher education, place limitations upon 
the powers of the institutions at the time of incorporation, and 
exercise a continuing control over them after incorporation. The 
present inquiry is: What have the states done in the exercise of 
this authority? The answer is sought through two channels: 
(a) The laws of the states governing the incorporation of institu- 
tions of higher education ; (b) The charters of private colleges and 
universities. 

This chapter is concerned with control as defined in the laws of 
the states. Examination was directed especially to the corporation 
laws and, in them, to the provisions which limit the powers of 
institutions at the time of incorporation and which provide con- 
tinuous supervision over their conduct after incorporation. The 
state control in the laws is treated under the following topics: 

37 


38 State Control of Private Higher Education 


I. Initial control through 
a, The agency responsible for the approval of the articles of 
incorporation. 
b. Minimum requirements in the laws pertaining to property, 
staff, courses, admissions, and degrees. 
2. Continuing control through 
a. Limited tenure of the institution. 
b. Reservation of power to amend or repeal. 
c. Regulation by the educational agency of the state. 


LAWS UNDER WHICH THE STATES INCORPORATE INSTITUTIONS OF 
HIGHER EDUCATION 


Lhe state incorporates an institution either through special act of 
the legislature or through general corporation law Before pass- 
ing to the consideration of the elements of control in the laws of 
the states it is well to note the procedure followed by the states in 
exercising their authority in incorporating institutions. Two 
procedures are followed: Either the state grants a charter to an 
institution by an act of the legislature or the state provides for 
incorporation through a general corporation law. Under the latter, 
a general law usually defines the procedure which those who wish 
to incorporate must follow; prescribes the necessary elements in 
the articles, as the name, place of business, purpose, managing 
board, and tenure; and adds any limitations which the state wishes 
to impose. Incorporation under general laws is the usual proce- 
dure. Table I, facing page 68, shows for the forty-eight states and 
the District of Columbia that 

Thirty-five states provide for incorporation under general law 

only. 

Three states provide for incorporation under legislative enact- 

ment only. 

Eleven states provide for incorporation under either the legis- 

lature or general law. 

Since it is the tendency for the states to provide for incorpora- 
tion under general law such procedure must have distinct advan- 
tages. W.R. Hood of the United States Bureau of Education 
gives two. By this procedure (a) states can pursue a constant 

1 The writer was aided in the examination of the laws by having at hand a digest 
of the laws recently compiled by Mr. William R. Hood, Assistant Specialist in School 


Legislation, United States Bureau of Education. This was loaned to him previous 
to publication through the courtesy of the Bureau. 


State Control as Provided in the Laws of the States 39 


and consistent policy with respect to corporate franchises, and 
(b) charters are less subjected to the influences of politics. [1] 
Probably no one would question these advantages. Yet they 
should not be accepted without further consideration. Do the 
general laws empower some agency, qualified to pass judgment on 
educational matters, to approve the articles of incorporation? Or 
does the agency pass upon the completeness and legality of the 
instrument only and file it as a clerical duty? If the latter, it 
may be questioned whether the best interests of the public are 
always safeguarded when an institution is established. What do 
the laws provide on this point? 


INITIAL CONTROL 


Fewer than one-half of the states provide for special approval 
of the articles of incorporation. Several practices are followed 
in the different states in the matter of approving articles of 
incorporation of institutions of higher education. The detail 
of the procedure is not so much the concern here as the means 
provided for approving the articles. Who approves the articles 
of incorporation before they are filed and the institution is au- 
thorized to enter upon its business? What is approved?’ The 
following summarizes the various agencies which approve, with the 
number of states so providing. 


Agency’ Number of States 
ROVETUOT ee a Stes hate Bie aes ela hoen’ leks I 
State charter board or corporation commission 6 
PECTED VPRO LEStALC cc elytekts Meter ite Styntaye coy y'3 2 
County judge or judge of circuit court ....... fe 


Filed with secretary of state or county clerk 
without special approval (oo. 2). ha... ae 28 
PLUICALI ONAL PAS OTICV ils shat cre cette sotete sere eie os a> IO 


Nine states provide for approval by the governor, secretary 
of state, or some commission. None of these are educational 
agencies. For instance, the charter board of Kansas is composed 
of the attorney-general, secretary of state, and state bank com- 
missioner and determines that the business is one for which the 
s pabinee OE GOGAE ts Goa LN aa oe De ean we a atten RTE CTE 


time of incorporation. In Pennsylvania the judge of the county approves upon 
recommendation of the educational agency. 


40 State Control of Private Higher Education 


corporation may lawfully be formed, and that the applicants are 
acting in good faith. [2] In Nebraska the special commission 
appointed by the judge of the county in which the institution is 
located “personally examines the property, funds and securities 
alleged to be set apart for the purpose ... and appraises the 
same, and reports the facts thus ascertained to the judge.” [3] 
In Arizona, Oregon, New Mexico, and Virginia, the articles of 
incorporation are filed with the state corporation commission. 
Connecticut and Michigan require the secretary of state to approve 
the articles as well as to file them. The county judge or judge 
of the circuit court in seven other states, empowered to pass upon 
the articles, considers primarily the legality of the instrument, or, 
as in the case of Pennsylvania, considers whether the charter is “‘in- 
jurious to the community.” This brief recital of the provisions 
in fifteen states leads to the observation that, although special 
consideration is given to the articles of incorporation by the gover- 
nor, a commission, the secretary of state, or a judge, primary con- 
cern is with the conformance of the articles to the legal require- 
ments. The functions of these men being other than educational, 
it is seriously questioned if they are competent to pass the best 
judgment upon the necessity for the institution and the quality of 
its proposed service from the point of view of education. 

In twenty-eight other states, including the District of Columbia, 
the action of the county clerk, recorder of deeds, or secretary 
of state is largely clerical and confined to the filing of the articles, 
and the issuance of a certificate of incorporation. 

It may be observed at this point that the incorporation of in- 
stitutions under corporation laws of general application remove 
new institutions from the scrutiny of a special approving agency, 
except where provision for special approval is defined in the law. 
Formerly, when a charter was sought from a legislature, the 
character of the incorporators and the purpose of the proposed 
institution were exposed to the examination of the legislators 
and indirectly to the public. How thorough such an examination 
was is not pertinent to this study. Present concern is with the 
fact that laws now existing, under which institutions of higher 
education may be incorporated, do not generally make provision 
for special examination of the intent of the incorporators and the 
ability of the institution to fulfil its proposals. The states that 


State Control as Provided in the Laws of the States 41 


make provision for special approval by the educational agency, 
in an effort to satisfy this omission, deserve consideration." 

Ten states empower the educational agency to approve articles 
of incorporation or grant license to an institution to confer degrees. 
To what does the educational agency give attention in passing 
upon the articles? What is the extent of its authority? In order 
that the provisions in the laws on these points may be given 
proper consideration, the clauses that apply are cited : 


Arkansas 

Said board [board of education] shall have sole power to grant 
charters to academies, colleges, universities, and all other higher 
institutions of learning, determine what institutions may confer de- 
grees and under what conditions. .. . 

In dealing with charters the Attorney General shall be consulted 
and no rule shall be adopted or order issued without his approval. [4] 


Georgia 

No charter giving the right to confer degrees or issue diplomas 
shall be granted to any proposed institution of learning within the 
State of Georgia until the proper showing has been made to the State 
Board of Education that the proposed University, College, Normal or 
Professional School shall give evidence of its ability to meet the 
standard requirements set up by the State Board of Education. [5] 


Massachusetts 


Whoever intends to present to the general court a petition for the 
incorporation of a college, university or other educational institution 
with power to grant degrees, or for an amendment to the charter 
of any existing educational institution which will give it such power, 
shall on or before November first prior to its intended presentation, 
deposit the same in the office of the department of education. ... 
Said department shall transmit said petition to the general court 
during the first week of the following session with the recommenda- 
tions relative thereto. [6] 


North Carolina 


The commission herein created [a college commission consisting of 
the state superintendent of public instruction, and four others ap- 


1 So-called “diploma mills’? prey upon the desire to possess a degree. They spring 
up constantly, especially in states that have in their laws no provision for special 
approval. Elsewhere was noted a case recently before the United States Supreme 
Court in which the degree of Certified Public Accountant was sold without due 
consideration for the qualifications of the purchaser. Oriental University is another 
such institution of long-standing, conspicuous in the breadth of territory over which 
it operated and the scope of degrees offered. The head of the institution has just 
been convicted of using the mails for fraudulent purposes. ‘Degrees for Dollars,”’ 
Educational Record, January, 1926. 


42 State Control of Private Higher Education 


pointed by the governor] is authorized to issue its license to confer 
degrees in such form as it may prescribe to any educational institution 
hereafter established by any person, firm, or corporation in this state: 
but no educational institution hereafter established in the state shall 
be empowered to confer degrees unless it has income sufficient to 
maintain adequate faculty and equipment sufficient to provide ade- 
quate means of instruction in the arts and sciences; and unless its 
baccalaureate degree is conferred only upon students who have com- 
pleted a four-year course in college, preceded by the usual four-year 
high school course, or its equivalent. [7] 


Maryland 

The State Board of Education shall prescribe the minimum require- 
ments for issuing all certificates, diplomas, and academic, collegiate, 
professional, or university degrees . . . nor shall any public or pri- 
vate educational institution issue any certificate, diploma, or academic, 
collegiate, professional or university degree without having first ob- 
tained the assent of the State Board of Education and approval of 
said board of the conditions of entrance, scholarship, and residence 
upon which said certificate, diploma, or degree is issued. [8] 


New Jersey 

Any corporation organized under any laws of this State, or per- 
mitted to transact business in this State, for the purpose of furnishing 
instruction or learning in the arts, sciences or professions conducted 
within this State to attain the admitting of any person or persons to 
the grade of a degree ... shall, before beginning business, or con- 
tinuing in the same, after this act shall become effective, file a certi- 
fied copy of its certificate of incorporation with the State Board of 
Education, and obtain from the said Board a license to carry on said 
business under such rules and regulations as said board may pre- 
scribe. [9] 


New York 

Under such name, with such number of trustees or other managers, 
and with such powers, privileges and duties, and subject to such 
limitations and restrictions in all respects as the Regents may pre- 
scribe in conformity to law, they may, by an instrument under their 
seal and recorded in their office, incorporate any university, college, 
academy, library, museum, or other institution or association for the 
promotion of science, literature, art, history or other department of 
knowledge, or of education in any way, associations of teachers, 
students, graduates of educational institutions, and other associations 
whose approved purposes are, in whole or in part, of educational or 
cultural value deemed worthy of recognition and encouragement by 


State Control as Provided in the Laws of the States 43 


the University. No institution or association which might be incor- 
porated by the Regents under this chapter shall, without their con- 
sent, be incorporated under any other general law. [10] 


Ohio 

But no college or university shall confer any degree until the 
president or board of trustees thereof has filed with the secretary of 
state a certificate, issued by the state commissioner of common schools, 
that the course of study in such institution has been filed in his office, 
and that the equipment as to faculty and other facilities for carrying 
out such course are proportioned to its property and the number of 
students in actual attendance so as to warrant the issuing of degrees 
by the trustees thereof. [11] 


Oklahoma 

The state board of education shall have power to approve other 
colleges and universities which, when so approved, shall have the 
authority granted in section 394 above. [In this section a number of 
institutions named were given power, upon the recommendation of 
their respective faculties, to grant the academic and professional 
degrees usually and customarily granted to graduates of institutions of 
collegiate rank.] The application shall set forth clearly the course 
of study, the condition of equipment and other information as the 
state board of education shall require. [12] 


Pennsylvania 

Upon the receipt of said certified copy of certificate of incorporation 

_. the said Superintendent of Public Instruction shall, within sixty 
days thereafter cause said State Council of Education to be convened 
at such time and place as he may designate, and said council shall 
thereupon hear and consider such application, and if the course of 
instruction and standard of admission to said institution and the com- 
position of the faculty shall appear to said council to be sufficient, 
and the educational needs of the particular locality in which the pro- 
posed institution is to be situated and the commonwealth at large 
are likely to be met by the granting of said application, the said 
council shall thereupon cause to be endorsed on said application or 
certificate its findings and its approval of the same together with a 
recommendation to the law judge of the court before whom the same 
was originally presented that the same be granted. [13] 


It is observed from the foregoing citations that no one pattern 
was followed by the states. Variety would seem to characterize 
the practice at present. However, a certain evaluation of the 


44 State Control of Private Higher Education 


authority of the several educational agencies is possible by an- 
swering two questions: (1) Is the action of the educational 
agency final in approving the articles, or issuing license to confer 
degrees? (2) Does the agency determine the educational stand- 
ards upon which approval is rendered? 

The following checks the laws of the ten states on these 
two points: 


Sfate Is the Action of Does the Agency De- 
the Agency Final? termine the Standards? 
IAT eat Sa Si Blac a cimamnte ed ualeee ees Yes Yes 
GEOPS1a REG aloe lente: fame Mae. Yes* Yes 
Massachusetts ieacsem cies ainets Recommendation 
to Legislature Yes 
Marylancihanm cme cin eaten Yes* Yes 
North Carolina Wis. tus ucae nas Yes* Yes 
New? Jersey (ics Sees ae ees Yes Yes jf 
NeW Orkin ve fe rae Yes Yes 
Babel ay cae ee Niet ran Cas SERN CN Yes Yes 
Oklahoman wie cope kee eine Yes* Yes 
Rennsylvatiaywavleer ae ese Recommend to Court Yes tf 


*In the matter of conferring degrees. 
j,Law prescribes four-year preparatory course and four-year college course, or 
equivalent, as prerequisite for the degree. 


In spite of the diversity of practice revealed in the laws of the 
ten states, the educational agency in practically all, acts with 
finality in its approval and in the determination of the standards 
upon which approval is based. This delegation of responsibility 
to an agency whose primary concern is education is fundamentally 
sound. 

It may be questioned why only ten states have placed responsi- 
bility for approval in an educational agency. When the recency 
of the laws and the educational area affected are considered, the 
progress is markedly significant. Most of the laws referred to 
were passed since 1910. New York is a notable exception. It 
stood for more than one hundred years as the only state providing 
for approval in its educational board. The Regents of the Uni- 
versity of New York was created in 1784 when the flush of state 
consciousness, which followed statehood, was strong. To this 
body was given power not only to grant charters on its own 
regulations but also to alter or repeal them. Pennsylvania was the 
second state to make provisions for approval by an educational 
agency, which, however, was not the regularly constituted edu- 
cational body of the state. In 1895 a law was passed creating a 


State Control as Provided in the Laws of the States 45 


“College and University Council” to “consist of twelve members; 
namely, the Governor, Attorney General and Superintendent of 
Public Instruction . . . ex-officio, three persons selected from 
the presiding officers of undenominational colleges or universities 

.. three persons selected from the presiding officers of de- 
nominational colleges and universities ..., and three persons 
holding official relationship to common schools of the state.” [14] 
These were appointed by the governor for a term of four years 
with the advice and consent of the senate. This College and 
University Council passed upon the course of instruction, stand- 
ards of admission, and educational needs of the community, and 
made recommendations to the judge of the court. [14] In Iga21 
this law was repealed and the power of approval was placed in 
the state council of education as cited above. 

The action of Pennsylvania in 1895, together with evidence 
that certain institutions were abusing their degree-granting powers, 
caused the National Education Association to give special con- 
sideration to the problem of state control at its session in Mil- 
waukee in July, 1897, which resulted in the passage of the follow- 
ing resolution: 


Resolved, That the State should exercise supervision over degree- 
conferring institutions through some properly constituted tribunal 
having power to fix a minimum standard of requirements for admission 
to or graduation from such institutions, and with the right to deprive 
of the degree-conferring power such institutions not conforming to the 
standard so prescribed. [15] 


Following this action, the Bureau of Education, Washington, 
D. C., made a study of the situation throughout the states and 
published the findings in the annual report for the year, 1897-1898. 
This study revealed, in practically all the states, the absence of 
authority in an educational agency to grant degree-conferring 
power and the absence of requirements for institutions to meet 
in obtaining the right to confer degrees. Since the publication 
of the report, several additional states passed laws providing for a 
more effective supervision over institutions of higher education. 
Ohio passed its law in 1910; Arkansas transferred to the state 
board of education in 1911 the chartering powers held by a board 
composed of the governor, secretary of state, and state super- 
intendent ; New Jersey and Maryland followed in 1916; Oklahoma, 


46 State Control of Private Higher Education 


in 1917; and North Carolina and Georgia, in 1919. When the 
recency of the laws is considered it is evident that a distinct 
progress has been made. 

In this connection should be considered also the educational 
area affected by the laws. The ten states constitute only 20 
per cent of the total number of states, including the District of 
Columbia. These ten states, however, include a much larger pro- 
portion of the institutions of higher education in the United 
States. New York and Pennsylvania, with fifty-five institutions 
each, exceed any other state. Ohio is fourth in the list of states 
with forty-four ; Massachusetts is sixth with thirty. [16] Whereas 
the ten states are 20 per cent of the total number of states, they 
have 36 per cent of the colleges and universities. This supports the 
observation that distinct progress has been made. 

The topic under consideration is the initial control of the 
state over institutions of higher education by means of an agency 
vested with responsibility to approve the articles of incorpora- 
tion. The observations are summarized in these words: 

1. Thirty-nine states, including the District of Columbia, place 
responsibility for the approval of the articles of incorporation 
solely in such agencies as the governor, iudge, corporation com- 
mission, county clerk, and secretary of state. These agencies 
are concerned largely with the legality of the instrument. 

2. Ten states place in the educational agency of the state re- 
sponsibility for either approving the articles or granting license 
to confer degrees. This is the present tendency. 

A few states only prescribe minimum requirements in their 
laws pertaining to property, instructional staff, courses, admissions, 
and degrees. The initial control over incorporated institutions of 
higher education through an approving agency, has been noted. 
The state may exercise initial control also by prescribing in the 
laws governing the incorporation of such institutions limitations 
on the minimum amount of property or income which the institu- 
tion must have, the number of members on the instructional staff, 
the courses of study, or the requirements for admission and de- 
grees. Under its authority the state may define limitations exten- 
sively, either minimum or maximum, in the interest of public 
welfare. No state, however, has prescribed maximum limitations. 
Several have placed minimum requirements. These‘ questions 
arise: What states have prescribed minimum requirements as 


State Control as Provided in the Laws of the States 47 


regards property, number of instructional staff, courses, admis- 
sions, and degrees with which the institutions must comply before 
their articles of incorporation are approved? What is the nature 
of the limitations? 

As regards property requirements —Five states prescribe mini- 
mum amounts of property or income. Michigan requires a col- 
lege to have for its permanent use and benefit property to the 
value of $100,000 or more. This is not applicable to a college 
of a religious order or denomination. Nebraska has a similar 
provision. No exception, however, is made to a religious de- 
nomination. 

New York requires an institution, before it can confer degrees, 
to have resources of at least $500,000. North Carolina merely 
provides that the property shall be adequate. Ohio places the 
minimum at $25,000. Pennsylvania by an act in 1923 thereafter 
requires of institutions an endowment of $500,000, or more, in 
buildings and equipment. This, however, is not applicable to 
institutions maintained by religious or other organizations to 
which support or services are given equivalent in value to the 
endowment required. Colleges and theological seminaries already 
incorporated under special act are permitted to obtain power to 
confer degrees if their invested funds are $100,000, or more, at 
the passage of the act. Colleges having property or capital of 
$100,000, or more, at the passage of the act can continue to confer 
degrees. 

It is not the purpose here to inquire into the soundness of 
the policy of limiting the amount of property requisite for degree- 
granting power, but it is seriously questioned whether any definite 
minimum should be prescribed when property values and in- 
structional costs are subject to fluctuation. It may be sounder to 
empower some agency, preferably educational, with authority to 
determine standards from time to time as the needs then dictate. 

Requirements regarding number of professors—Here again 
but few provisions appear in the laws. Arkansas and New York 
require a minimum instructional staff of six. District of Columbia 
and South Dakota merely provide that the number and designation 
of the professorships be stated in the articles of incorporation. 
Pennsylvania requires that an institution have eight regular 
professors who devote all of their time to college or university 
classes, except in a college or university devoted to a specific sub- 


48 State Control of Private Higher Education 


ject, such as art, archeology, literature, or science, in which case 
the faculty need not consist of more than three regular professors 
and two instructors or fellows. 

Requirements regarding courses of study—Arkansas and 
Colorado require the courses to be of university or college grade. 
District of Columbia provides that the courses be designated in 
the articles of incorporation. Maryland and New Jersey state 
that such courses shall be given as are approved by the state 
board of education. Louisiana, New York, North Carolina, and 
Pennsylvania require four years, or the equivalent, after comple- 
tion of a high school course of four years. 

It is evident that the states—even the few that mention the 
courses of study in their laws—do not in any way attempt to 
limit the kind or number of courses which may be offered by an 
institution of higher education. Where mentioned, the concern 
is only that the courses meet the approval of the state board of 
education or be of a certain grade and duration. 

Admission requirements.—Pennsylvania, New York, and North 
Carolina, as noted, require for admission to an institution of 
higher education the completion of a four-year high school course 
or its equivalent. New York and Pennsylvania further require 
the approval of the state educational agency. In Maryland the 
state board of education defines the standards. Here again, since 
only four states include in their laws any specific reference to ad- 
missions, it is evident that the states have not intended to exer- 
cise control in this manner. It should be noted, however, that 
the educational agencies in those states which empower them with 
authority to approve articles of incorporation or grant licenses 
to confer degrees do determine standards of admission which brings 
the number of states thus exercising initial control to ten. Even 
so, the percentage of the states so providing is small. The ex- 
plicit declaration of Pennsylvania, that it does not intend to pre- 
scribe limitations, is interesting in this connection. The law of 
TQ21,) NO355;) ECO, States: 


Nothing in this act, or in any act of this Commonwealth now in 
force, shall be construed as fixing an arbitrary standard by which 
applications for charters under this act shall be measured, either with 
respect to value of assets, number of faculty, or course of instruction; 
but such matters shall be within the discretion of the law judge or court 
to whom petition is presented and the State Council of Education. 


State Control as Provided in the Laws of the States 49 


Provisions for degrees—The power to confer degrees is not 
one of the inherent powers of a corporation and, consequently, 
has to be expressly granted to institutions which wish to confer 
them. In the granting of this power the state has a definite 
means for exercising control. What control, then, is contained 
in the laws of the states? Is the power to confer degrees general 
or limited? Is special approval by some agency necessary? An 
examination of the laws of the states reveals the following: 

In 26 states the laws grant general power to confer degrees. 

In 2 states power to confer degrees rests solely with the legis- 
lature. 

In 10 states the educational agency approves the articles of in- 
corporation or gives license to confer degrees. 

In 1 state the corporation commission approves. 

In 1 state the governor, attorney-general and secretary of state 
approve. 

In 1 state the articles of incorporation specify the degrees. 

In 7 states no mention of degrees is made. 

These facts? need but little further explanation. The laws of 
the twenty-six states first mentioned place no limitation upon the 
degree-conferring power, except in Louisiana, where institutions 
are permitted to confer the degree of Bachelor of Arts or Bachelor 
of Science if their courses are four years beyond graduation 
from an approved high school. The laws of these states either 
give blanket permission to confer degrees or state that such degrees 
may be conferred as are usually conferred by like institutions. 
Obviously, this constitutes no practical control. There is also no 
prescribed control in the seven states where no mention is made 
of degrees. Therefore, practically no limitation on the power to 
confer degrees is provided in the laws of thirty-four states. In 
the remaining fifteen, special approval is required, ten of which 
place responsibility in the educational agency of the state. Further 
explanation, then, is not made at this point, except to refer to 
Chart 1, page 68, which summarizes for the several educational 
agencies of the states, among other powers, those pertaining to 
degrees. 

To conclude, the initial control which states exercise through 

1The initial control of the educational agency through the granting of licenses to 


confer degrees was presented on page 41, and the continuing control of the same 
agency through power to revoke the license will be given later. See page 51. 


50 State Control of Private Higher Education 


prescribed limitations in their laws governing property, etc., are 
summarized thus: 

1. States have not generally, in their laws, placed limitations 
upon the amount of property, number of instructional staff, and 
courses of study requisite for incorporation as an institution of 
higher education, nor upon the power to confer degrees. 

2. There is a tendency for states to empower some agency, 
generally the educational agency of the state, to determine the 
standards for admission and conferring of degrees, and upon 
these to approve articles of incorporation or grant license to confer 


degrees. 
CONTINUING CONTROL 


What continuing control do the states exercise over institutions 
of higher education after their incorporation, as provided in the 
laws of the states? Is the control left to the courts, or have 
special provisions for control been prescribed? Control through 
the courts can be dismissed as generally applicable since, by 
virtue of their function, they can determine whether the objects 
of the trusts are being pursued and the funds are rightly appro- 
priated, if alleged infringements are legally brought to them. 
(See page 31.) Three types of continuing control appear in the 
laws: 

1, Limited tenure of the articles of incorporation. 

2. Reservation of power to the legislature to amend or repeal 
the articles of incorporation. 

3. Regulation of incorporated educational institutions through 
the educational agency of the state. 

These are considered separately. 

Nine States limit the life of incorporated institutions. Table 1 
facing page 68 shows the following provisions for limited tenure 
of articles of incorporation: 


State Years 
ASIZONA Oh ees 25 
Calstorntaweat wis 50 
Indiana (aoa ee ene 50 
Towa tee tae det 50 
Georgia: ie touts 20 (unless otherwise provided in the articles) 
KWarlsasaicmesns ante 50 
Mississippiineen ane 50 
IMASSourt erates 20 (unless otherwise provided in the articles) 


Utah Sie Sia une 100 


State Control as Provided in the Laws of the States 51 


What is the nature of the control by means of a limited tenure? 
At the expiration of the corporate life of an institution re-incor- 
poration is necessary. At this time the limitations which the state 
may prescribe are the same as if the institution were new. New 
limitations may be defined—acceptable, however, to the incorpo- 
rators—and former ones may be altered or removed. Re-incor- 
poration has another advantage. It brings the institution under 
the laws then in force; otherwise the institution operates under 
the laws that existed when originally incorporated unless the laws 
provided that any subsequent changes would have equal force. 
The limited tenure, then, makes possible a periodic revision of the 
articles of incorporation, and periodically brings the institutions 
under the existing laws. But the limited tenure has objections. 
It is apt to disturb the stability of the institution as the date of 
termination approaches. It does not provide regulatory control 
during the tenure. 

Seven states reserve to the legislature the right to amend on 
repeal the articles of incorporation. Kentucky, New Mexico, 
North Dakota, Oklahoma, Tennessee, Texas, and Virginia reserve 
to the legislature the right to amend or repeal at any time the 
articles of incorporation of their institutions of higher education. 
The following illustrates the wording of the reservations: 


North Dakota 


Every grant of corporate power is subject to alteration, suspension 
or repeal in the discretion of the legislative assembly. [17] 


Texas 

All charters or amendments to charters, under the provisions of 
this chapter, shall be subject to the power of the legislature to alter, 
reform or amend the same. [18] 


This reservation would seem to constitute an effective control, 
even to the dangerous point of subjecting the institutions to the 
influence of politics. When it is considered, however, that the 
power to amend or repeal does not extend to the taking of 
property or to the destruction of vested rights, the laws are less 
formidable. Even so, control in regard to withdrawing the power 
to confer degrees or changing the composition of the board of 
trustees is strong. 

Seven states provide regulatory control through thew educa- 
tional agencies. Reference has been made to the ten states which 


52 State Control of Private Higher Education 


place in their educational agencies the power to approve articles 
of incorporation or grant licenses to confer degrees. (See page 
41.) The questions now to be considered are: Has the educa- 
tional agency the power to define the standards which institutions 
of higher education must maintain in order to continue their life 
as corporations or confer degrees? Has the agency power to 
visit and inspect institutions or require reports from them? Has 
the agency power to amend or repeal the articles of incorpora- 
tion of institutions or revoke their licenses to confer degrees? 
Does the agency render reports on the institutions ? 

For convenience in considering these questions the powers 
concerning them in the several states are summarized in Chart I. 
Both the initial and continuing control through the educational 
agency are included in this chart for purposes of comparison and 
picturing the complete situation. Most of the states presented 
exercise both controls. 

First, however, mention should be made of the one state which 
provides for the visitation of institutions other than through 
the educational agency. Kentucky provides that religious, chari- 
table, and educational institutions shall “at all times be subject to 
visitation by the legislature.” [19] Such power in Kentucky is 
effective, since the legislature has reserved the right to repeal 
charters, granted or enacted since February 14, 1856, “unless a 
contrary intent be therein plainly expressed.” [20] But visitation 
by the legislature carries political implications that open such 
procedure to criticism. 

In order that the provisions for visitation, etc., by the educa- 
tional agency may be clearly understood, the parts of the laws 
that apply in the respective states are quoted here: 


Arkansas 
. .. the said board [State Board of Education] shall have the sole 
power to ... inspect all chartered institutions, and to revoke their 


charters, for failure to maintain such standards as may be required. 
All charters heretofore granted shall be examined by the board and 
it shall have authority to issue new or revised charters, if necessary, 
to bring all into conformity to the rules of said board. [4] 
Maryland 

The State Board of Education may, in its discretion, prepare and 
publish annually, a list of approved colleges and universities and 
determine, by by-laws, the standards for said approval. . . . The State 


State Control as Provided in the Laws of the States 53 


Board of Education shall require, with and on the advice of the State 
Superintendent of Schools, all private educational associations, cor- 
porations, or institutions to report annually, on or before the thirty- 
first day of August, as to enrollment and courses of study on such 
forms as the State Board of Education may provide. [21] 

See also page 42. 


Michigan 


Every such corporation (educational) shall be subject to the visita- 
tion and inspection of the Superintendent of Public Instruction, in 
person or through visitors or inspectors appointed by him, at such 
times as he may fix. Said superintendent shall be empowered to 
ascertain and publish information upon all matters pertaining to the 
condition, management, instruction and practices of the corporation; 
and upon evidence that the property is at any time less than is re- 
quired by law, or that the corporation is not otherwise complying 
with the provisions of this act, he shall serve notice on the corpora- 
tion to remedy the defects within a reasonable time fixed in such 
notice, and in case the deficiency is not corrected within the time 
fixed by him, he may institute proceedings at law for the dissolution 
of the corporation. Such trustees shall be required, on or before the 
first day of December, annually, to report to the Superintendent of 
Public Instruction, a statement of the name of each trustee, officer, 
teacher and the number of students of such institution, with a state- 
ment of its property, the amount of stock subscribed, donated and 
bequeathed, and the amount actually paid in, and such other informa- 
tion as will tend to exhibit its condition and operations. [22] 


Minnesota 


The trustees of any incorporated college or seminary, in addition 
to their other powers, may prescribe the course of study, grant such 
literary honors and degrees as are usually granted by similar institu- 
tions, and give suitable diplomas in evidence thereof. They may 
make all rules, ordinances, and by-laws necessary and proper to carry 
into effect its powers. Every such college shall be subject to visita- 
tion and examination by the superintendent of public instruction... . 
They shall annually, on or before January I, report to the superin- 
tendent of public instruction the name of each trustee, officer, and 
student, the amount of stock subscribed, donated and bequeathed, and 
the amount actually paid in. 

1A letter from the superintendent of public instruction, Minnesota, October 
24, 1925, states that this law is practically dead. ‘In the first place,” says the 
letter, “the State Department of Education is not required to visit and examine 
these institutions. The law simply provides that they shall be subject or open 
to visitation. Neither is the State Department required to collect data from 


these institutions; as a matter of fact, by examining reports of previous years, 
we find that colleges have made this report only once, which was in 1880.” [23] 


54 State Control of Private Higher Education 


New Jersey 

No school, corporation, association or institution of learning con-. 
ducted within this state... shall admit any such person to the 
grade of a degree... without first submitting the basis or con- 
ditions thereof to the State Board of Education of the State of New 
Jersey, and obtaining therefrom its approval of the basis or conditions 
thereof so submittel. ... [There are excepted the institutions that 
have been established and conducted within the state for a period of 
twenty-five years.] The approval of the basis or conditions for the 
admission to the grade of a degree or degrees .. . may for proper 
cause, in the discretion of the State Board of Education, be revoked, 
after hearing, upon twenty days’ notice. [24] 


New York 

The Regents, or the Commissioner of Education, or their repre- 
sentatives, may visit, examine, and inspect any institution in the Uni- 
versity and any school or institution under the educational supervision 
of the State, and may require, as often as desired, duly verified reports 
therefrom giving such information and in such form as the Regents 
or the Commissioner of Education shall prescribe. For refusal or 
continued neglect on the part of any institution in the University to 
make any report required, or for violation of any law or any rule of 
the University, the Regents may suspend the charter or any of the 
rights and privileges of such institution. [25] 

The Regents may, at any time, for sufficient cause, by an instrument 
under their seal and recorded in their office, change the name, or alter, 
suspend or revoke the charter or incorporation of any institution 
which they might incorporate ... if subject to their visitation or 
chartered or incorporated by the Regents or under a general law. [26] 
No individual, association or corporation not holding university 
or college degree-conferring powers by special charter from the legis- 
lature of this State or from the Regents, shall confer any degrees, 
or transact business under, or in any way assume the name univer- 
sity or college until written permission to use such name shall 
have been granted by the Regents under their seal. [27] 

Subject and in conformity to the constitution and laws of the State, 
the Regents shall exercise legislative functions concerning the educa- 
tional system of the State, determine its educational policies, and, 
except as to the judicial functions of the Commissioner of Educa- 
tion, establish rules for carrying into effect the laws and policies of 
the State, relating to education, and the powers, duties and trusts. 
conferred or charged upon the University. [28] 

An institution to be ranked as a college must have at least six pro- 


State Control as Provided in the Laws of the States 55 


fessors giving their entire time to instruction therein; must require 
for admission not less than four years of academic or high school 
preparation, or its equivalent; and must maintain a curriculum of 
four full years of approved grade in liberal arts and sciences.” [29] 
North Carolina 

All institutions chartered under this article shall file such informa- 
tion with the state superintendent of public instruction as the com- 
mission may direct, and the commission shall have full authority to 
send an expert to visit any institution applying for a license to confer 
degrees under this article. And if any one of them shall fail to keep 
up the required standard the commission shall revoke the license to 
confer degrees, subject to a right of review of this decision by the 
judge of the superior court upon action instituted by the educational 
institution whose license has been revoked. [30] 
Ohio 

See page 43. 
Oklahoma 

See page 43. 
Pennsylvania 

All corporations chartered under the provision of this act shall be 
subject to visitation and inspection by representatives of said council 
[State Council of Education], and if any of them shall fail to keep 
up to the standard recital in its charter, in any of the branches of 
education in which it has power to conter degrees, the court may, 
upon the recommendation of the council, revoke the power to confer 
degrees in that branch or branches of education in which the corpora- 
tion shall fail. [31] 


The standards recited in the charter of the educational corpora- 
tion in Pennsylvania are included in the following items which 
the articles of the corporation certify: 

1. The name under which the trust or trusts shall be in- 
corporated. . 

2. The purpose for which it is formed. 

3. The kind or kinds of degrees which the corporation shall 
have power to confer. 

4. The amount of assets in the possession of said subscribers 
which are to be devoted to the establishing and conducting of those 
branches of education in which the corporation shall have power 
to confer degrees. 


1The college is thus defined by the Regents’ Rules. 


56 State Control of Private Higher Education 


5. A brief statement of the requirements for admission, and 
of the course of study to be pursued in each branch of educa- 
tion in which the corporation shall have power tu confer degrees. 

6. The place or places where the business is to be transacted. 

7. The term for which it is to exist. 

8. The names and residences of the trustees and the manner 
in which their successors are to be chosen or qualified. 

9. The officers of said city, and the names of those filling the 
offices at the time, who ex virtute officii are trustees, and the man- 
ner of their appointment or selection by the proper body of the 
city government. 

Io. Such other provisions as may be necessary to carry out 
the intent of the testator or donor. [32] 

It is possible now from these citations to answer the four 
questions concerning the power of the educational agency to define 
standards, to visit and inspect institutions, to amend or repeal 
articles of incorporation, to revoke licenses, to confer degrees, and 
to render reports. Generally the agency has these powers. It 
is sO in seven states except in the matter of rendering reports on 
the conditions of the institutions. Where the agency has legis- 
lative power to act finally in regard to the Incorporation of an 
institution or the conferring of degrees, as is the case in seven 
states, it is not necessary for the agency to report to its legislature 
concerning the institutions, except as it may report generally on 
education in the states. Five states have placed judicial power 
in the hands of the educational agencies. In the other two, 
Michigan and Pennsylvania, action is recommended to the court. 
The seven states are: Arkansas, Maryland, Michigan, New Jersey, 
North Carolina, New York, and Pennsylvania. Minnesota is in- 
cluded among the states providing regulatory control since institu- 
tions of higher education are subject to visitation by the superin- 
tendent of public instruction. However, this visitorial power is 
not being exercised at present. 

In addition to these eight states, Ohio and Oklahoma may be 
included, but their authority to exercise a regulatory control is 
doubtful. As noted previously, the educational agencies in these 
two states are vested with power to grant to an institution after 
incorporation a license to confer degrees. Whether these agencies 
have the power to visit and inspect the institutions after the 
license is granted or have the power to revoke the license is not 


State Control as Provided in the Laws of the States 57 


stated in the laws. Their right in these matters may be open to 
question. 

It is not pertinent here to analyze the powers of the educational 
agencies in detail. The laws are not drawn upon any one pattern 
yet in most cases the purpose is clear. For instance, the laws of 
Arkansas, New York, New Jersey, and Pennsylvania are quite 
differently constructed, yet the ends are the same, namely, the 
empowering of the educational agency with sufficient authority 
to exercise an effective regulatory control. The Arkansas law 
possesses the virtue of being brief, yet complete, in its grant of 
power. 

There is a provision in the Michigan law not specifically men- 
tioned in the others that deserves mention, for, at the same time 
that it is designed to serve the public, it affords an indirect control. 
The superintendent of public instruction in this state is em- 
powered to ascertain and publish information on all matters per- 
taining to the condition, management, instruction, and practices 
of the institution. Information so gathered and disseminated 
serves the people of the state positively in such ways as enabling 
them to select wisely the institutions in which they wish to educate 
their children. Through the same information, in addition, the 
public rates institutions, and institutions rate each other. Regula- 
tion through this indirect method is frequently very stimulative 
and effective. Perhaps with the same thought in mind, the legis- 
lature of Maryland empowered its state board of education “an 
its discretion” to “prepare and publish annually a list of approved 
colleges and universities.” (See page 52.) 

Concerning the effectiveness of publicity as a means of indirect 
control Freund says: 


Measures securing publicity are especially valuable and may often 
be relied upon to bring about the desired standard of private action 
without prescribing that standard in private terms. Many practices 
cannot stand the light of publicity, and will be abandoned voluntarily, 
or under the stress of public opinion if secrecy is impossible. The 
requirement of publicity is now generally advocated as the most 
effectual means of dealing with the abuses of monopolies. 


Regulatory control through the educational agency has been in 
operation longer in the states of New York and Pennsylvania 
than in the others. Consequently, procedure in them is more 

1Freund, E. Police Power, par. 35. 


58 State Control of Private Higher Education 


definitely established. As a basis for control the institutions in 
each state render annual reports to the agency. Copies of the 
respective reporting blanks are shown on pages 60 to 67. 


SUMMARY OF STATE CONTROL AS PROVIDED IN THE LAWS 


States generally provide for the incorporation of educational in- 
stitutions through general laws. Three states only retain the 
early procedure of chartering institutions through special act of 
the legislature. Eleven states provide for incorporation either 
under general law or by special act. 

The laws generally provide no state control of incorporated 
institutions of higher education by requiring at the time of in- 
corporation careful scrutiny of the articles of incorporation by a 
special approving agency. Seven states place approving power 
in a judge of the county or circuit court, six in a charter board 
or corporation commission, ten in an educational agency. ‘T’wenty- 
eight provide merely that the articles of incorporation be filed with 
the county clerk or secretary of state. 

The laws generally provide no state control by prescribing 
minimum standards for the amount of property, number of in- 
structional staff, courses, admissions, or degrees. 

There is a tendency to empower the educational agency of the 
state, upon its own standards, to approve the articles of incor- 
poration, or grant license to confer degrees. Ten states so 
provide. 

The laws generally provide no continuing state control by limit- 
ing the tenure of the educational corporation, or by reserving 
to the legislature the right to amend or repeal the articles of 
incorporation. Nine states limit the tenure. Six states reserve 
the right to amend or repeal. 

There is a tendency to empower the educational agency of the 
state with authority to visit and inspect institutions of higher 
education, and where standards prescribed by the agency are not 
complied with, to amend or repeal the articles of incorporation or 
revoke the license to confer degrees. Seven states so provide. 


REFERENCES 


I. U. S, Bureau of Education. “State Regulation of Degree-Granting 
Institutions of Higher Learning” (Unpublished). 
2. Kansas. Revised Statutes, Chap. 17, Sec. 401-403. 


State Control as Provided in the Laws of the States 59 


Nebraska. Compiled Statutes, 1922, Art. VII, Sec. 525. 
Arkansas. Digest of School Laws, 1921, Sec. 14. 

Georgia. School Code, 1921, Sec. 14. 

Massachusetts. Acts, 1923, Chap. 51. 

North Carolina. Consolidated Statutes, Chap. 95, Sec. 5400. 
Maryland. Public School Laws, 1920, 12B. 

New Jersey. School Laws, 1921, Sec. 577 (1). 

New York. Education Law, 1924, Sec. 59. 


. Ohio. School Laws, 1915, Sec. 9923. 
. Oklahoma. Public School Laws, 1919, Sec. 395. 
. Pennsylvania. Public Laws, 1921, No. 367. 


Pennsylvania. Public Laws, 1895, No. 327. 


. National Education Association. Proceedings of, 1897, p. 700. 


U. S. Bureau of Education. Bulletin, 1924, No. 20, Statistics of Uni- 
versities, Colleges, and Technical Schools, p. 14. 

North Dakota. Compiled Laws, 1913, Sec. 4495. 

Texas. Vernon Sayles’ Civil Statutes, 1914, Art. 1139. 

Kentucky. Carrol Statutes, 1915, Sec. 883. 


. Ibid., Sec. 1987. 
. Maryland. Public School Laws, 1920, 15A, 17. 


Michigan. Public Acts, 1921, Chap. 2, Sec. 8. 


. Minnesota. General Statutes, 1913, Sec. 6520. 


New Jersey. School Laws, 1921, Sec. 578, 579. 


. New York. Education Law, 1924, Sec. 58. 


Ibid., Sec. 62. 
Ibid., Sec. 66. 
Ibid., Sec. 46. 
University of the State of New York. Regents Rules, 1919, Sec. 24, 


p. 20. 


. North Carolina, Ibid. 
. Pennsylvania. Purdon’s Digest, 13th ed., Supplement, p. 5536, Sec. 7. 
. Lbid., Sec. 4, p. 5534. 


60 





State Control of Private Higher Education 


Commonwealth of Pennsylvaria 
OCEPARTMENT OF PUBLIC INSTRUCTION 
State Counc!l of Education 


| Mreresteseeesernans nqmenenentrnsaestterescsscseerestessecestheeheceteneeeens rete st eneetecnne ee 


Name of Institution. 


eomecngemersccsassesescescecnnesseneceesecseeseasersoeeyersteseccenserensssarstaperrensseecerpeaeesecameseeteceest 


Location. 


REPORT OF HIGHER INSTITUTIONS OF LEARNING 
FOR SCHOOL YEAR 192... 192. 


Make Two Copies of this Report, One to be Filed with the Department of Public Instruction and- the Other to be 
Hiled at the Institution. 


Date of: Organization ae re Date of) Charter doacndee 
Name of President or Chancellor 








Number of trustees cnn How appointed ous e oy a ale 
Denominational or ‘sectarian: connection .2. ome iea.eay kk orci ee 
S GROUNDS AND BUILDINGS 

oe Number of acres for campus purposes 

< Number of acres for athletic purposes 

5 Number of additional acres le eneeennenenen 

4 Value of grounds . LSE er eck Wee, Vike eee oe Be ees 


Number of buildings used for educational purposes cccccc1:sscescecuecnenmenennee 
Number of buildings used for dormitory purposes ...... 
Number of buildings used for other purposes ........... 

















Valuel of abutldings! /\o: asa sats acs 5 hector ters cla std Aeon mines 
EQUIPMENT 
Value/ot apparatus) (a) Physical at iccie aa siden ec initele einleite one eee crete 
(b) it Chemical pr derercyesieciste sila tiers sins eS easter ales 
(e)}o Biological ier. averuis pin cvelatotclatee «the elais rete ttata testes 
(d) Psychological 
(e) Engineering 
Gf) [WO ther apparatus s eiynceem dacctcmieeeie + cnielaes Dileocse reccecrcenter re Es 
Number of volumes in VDra rye scssesncsncsesesceneeee 
Walvev oF library ndas asics orce iene eciecd Pees RT ee dot ee ote ee ete Se x 
FACULTY 
Number of full time teachers once een eeee eA 
Number of part time teachers oo cccccccnecscsenienen x 
Number holding Baccalaureate degree ..... aa 
Number holding Master’s degree .... - 
Number holding Doctor’s: degree ..... 


MOtal Mores tices ais se Cee se ceniehi ate totes eater orton mate 

Longest term of service in years... 

Shortest term of service in years 

Median term of service in Vears els vine Sele Eee 
Salaries; 

Highest salary. saa Se en eee a 

_Lowest salary 

Median salary 

STUDENTS 
Number of full time students from Pennsylvania 


3 © 6.0 6) Ex 0, » snssevsesetseeneveorseveeiwssnreses 








FEMALE | TOTAL 


Ce meme emer ober eves 


Number of full time students frpm other states ..... ayeleteye ier’ 3 

Number of full time students from other countries 

Number,of partatimestudentame et is</ine sitet steiner Apsoar RiayareCt is 

Total jenrollment dor the syear ie dees sites orto eis cists cee eels Cane ete exe 1 
Graduates: 


eee eee ees 


CO Ce SC Sta Ce er 


Sh eae me Oy SYM ME Bd CO Ya fee pp eee 


Number of graduates at last commencemient ................. Se GALE 
Number of graduates since foundation ........eececcececcccecceccvcs 
| Teacher-Students: 
Number of students who are teachers in service .............+- asc056 
Number of students preparing for teaching ............... Satafefers dete id 
Number of graduates at last commencement who entered teaching pro- 
FESSION |) s\6 015155 islets visions sheptanenieiots ioral SOD RO DA AOC AR ADCS Gh GHD OHS HOGE t 


Ad—15 


PAGE I OF PENNSYLVANIA REPORT 


State Control as Provided in the Laws of the States 





ORGANIZATION 


Admission Requirements —— 











Departments and schools maintained in the institution: 
Graduation Requirement Degrees Conferred 


in Semester hours 










































Kind Number 
Graduate An baby 
Collegiate Cutan ire |e aepnren: 
Profegsional Kale Wares ane 
Other Depts. (gt ated ee orer 














(Check departments maintained and indicate types of schools in each) 
College year is expressed in:— 






















































































SEMESTERS TERMS 
WRI) BOMBS OR assess cheese haccinels ete hoe _ weeks Walli term) a oe eS ieake 
Spring semester weeks Winter term) 2.50 eee —__.. weeks 
PSURTINIOR BOEBIGI 5 Syste cenit) WEEKS Spring term joo ee ee Fl wecks 
Summer term ~WWW. Scat ten teas + Weeks 
SUMMER SESSION *Teacher-Student 
Enrollment Total Enroll 
Periods No. 8S. He |——————________ = pee 

Course Weeks per week Credit M. FP. Total M. F. Total 
—_— FS | —-—__—— ey 
EXTENSION WORK i *Teacher-Student 

Time of Place Buvollment || Tefal Mnottmant | 
Course Day Total M. F. Total- 
ote ete ek ae tal be ae EE ee ere ener ois 2 

















‘Where the necessities of this report require more space than is here provided, the report should be made on a separate sheet and 
attached herewith. 


“A teacher-student is a Pennsylvania teacher in service, enrolled as a student in the institution. 


PAGE 2 OF PENNSYLVANIA REPORT 


61 





62 State Control of Private Higher Education 


CORRESPONDENCE COURSES 


Hrs. prep. No. of *Teacher-Student 
Ponvee required lessons per |} No. 8. Enroliment Total Enrollment 
CONE Fb? 3 | les RU are eee aaiS hy Loe Pn See 
Deni iensen 1 LA Copee Credit M. F. Total | M. , Total 





TEACHER TRAINING 


Professional Courses No. of” Periods She ise Professional. Courses No. of Periods Ss. H. 
Weeks ‘per wk. Credit Weeks per wk. Credit 

p No. pupils School 

Practice teaching available ; used 


Nature of arrangement 


——— eee 


FINANCIAL STATEMENT 


( Amount of productive endowment. .. 2... .$.ncceenneeoe 
| Income from productive endowment.................:$...-. 
Appropriation from State, if any............ sefa svalie diets $A se eae ne Se. 
Receipts. Private benefactions, if any, for the year.,........... $ 
| sDuitionnand wees mromustudents was ene ee einreaeeits $ fetta 
| Receipts from other sources, if any.............ec0.. Sa 
{ Lotaligreceipts arc ws susteciss cists tnisaters ena iseeinsaisinsics a wert ah eke 
Amount expended for salaries of instruction force.....$——~—----___ 
; Amount expended for other salaries.................-.$.---— 
pxpenditiice Amountiotyalll Other expenses ester tcc oie stele ate a ose eee 
Total cost of operations for the year ............ ss Sie\e. Picea eee 


I hereby certify that the information herein contained is correct. 


buisa ee cle 8 ee Oe be erent ent as 


Seal of the institution: 


Co ei ee IGA 


PAGE 3 OF PENNSYLVANIA REPORT 


State Control as Provided in the Laws of the States 


**APPLICATION FOR RECOGNITION 


(Name of Institution) 
te eg ele cota Gate ODYL ADDUES LOE 
recognition and approval by the State Council of Education of Pennsylvania. 


This is to certify that the information herein contained is correct; that the *catalog sent 


herewith is our latest publication and that the copy of the *charter hereto affixed is an exact, 


reproduction of the wording of the original document. 


Ree ee ee ee ie ees POSIT ta 


Pet ete ee een ene ee er COME. 


BneS Pipers Ae Ste SOR WEE eR eee Nn eee, CACY: 


(Seal of institution.) 
an. Aas WA TOt Sas eet a has ot fo ial) Sal Sie Uh abled 5 Rhye 


Secretary. 


*Copies of catalogue and charter should accompany this application. 


**Pennsylvania Institutions which have been recognized by the State Council of Education will disregard this application. 


PAGE 4 OF PENNSYLVANIA REPORT 


63 





State Control of Private Higher Education 


Colleges and professional and technical schools 
ANNUAL REPORT OF THE TRUSTEES OF 














FOR THE YEAR ENDING JULY 31, 1925 
To The University of the State of New York 


This annual report is required by law to be transmitted to the ‘Department on or before August 1, 1925. 




















Item 1 
Days of regular classroom instruction including half-day sessions but excluding summer sessions:..:...seces- Soda 
Item 2 Faculty and employees 
Names of officers of faculty July 31, 1925. 
Precidentien ot etaleiy ee soeapaeued ekes teense ae eget OT Ss OATIS pecbetcestakes re ecaasin sae iene a Oe oto 
Registrars sein to ficeaty tess eat ice eat tee ees OECTELALY nee duc ease rt Bee eS ee ee * 
No. of officers of instruction Men |Women| Total : A 
(ites A The following questions are to pe answered 
by medical schools: 
Full professors.......5..... nde Et Pere aust gl ee tied i habe How many professors or insiructors are 
. ; ’ paid a Salary and give their full time to 
Adjunct, associate and ass’t professors! | | ee riedical aortic? eee 
Instructors and tutors........ a tielsiecl wenied Citar Ei) as tire Specify subjects taught by each: 
Lecturers... .. sie/aveternsle wierd tates $0006 Lansscscsscccece|acanursseseseetelsnensamnannenee|  TAaTTATaTOAsccaseeacenacacaaceensecscsesassaenasnectensseeecenenensensasseseneee o 











Does the president of the faculty teach ?.... ssc... Is he included under “ officers of instruction” above Pees 


Does the dean of the faculty teach ?Po.ccesceescceccesseece Is he included under “ officers of instruction” above?.... 


ese deceteceses: - 








Item 3 Students. Number and classification of students during past year 


Insert in blank spaces any other courses, e. g. Philosophy (PB.B.) ete, and use biank sheet if more columns are needed. F 
Schools of law, theology, medicine etc, should write in the Proper heads e. g. ‘‘ Law (LL.B.),” “ Theology (B.D.),” “ Medicine (M.D.)” eto, 


In column ‘ Unclassified” put according to year of attendance, regardless of studies taken, all college and graduate students not taking a regular 
course Icading to a degree. , 


Do not include summer school or university extension students in the following classifications. 











Arts Science 


(B. A.) (8. 8.) Unclassified 


CLASSES 





Freshman, Ist year.. 
Sophomore, 2d year.|_. 


Junior, 3d year..... 








Senior, 4th year.... 























Fifth year and above 
or graduate students 

















$399-Ap25-300(3741)* 





Pace I oF New York Report 


State Control as Provided in the Laws of the States 65 


Item 4 Degrees conferred 


Higher degrees 
“In course” withont 










examination 
a ‘3 
; °o 
= a 
Metis wslccn ase airs o> Be koe ie x! Re SUR be WS Led Wace phe ee Beh eetred leo PES Lae 
WV OIED wee ues, e'e e's > oe 3H oe ell a ee ea eel a lee Chae ad Mead Ke sed eel 


Total since last re 
POE. ceceseveress 


—eeOeOOeeeeeeeeee-:“‘“——— 


Besides the above. .........----.-.00-++ IMeH Atle eeneegee ..women were graduated during the past year, but received 


no degree. ! 
Recipients of honorary degrees conferred without examination 
eee 


Name Degree Residence 


as eG PEE SFr RE aS a a —_—_—_—_————_ 





: : 
Item 5 Library 

Number of volumes in library...........-...--+-+ Pike toatalel lec nt re erect eee ‘Is your library free to the public 
POUNES TOLGNICE 0st t eee cre ccsres aerene fOr lenditigitacerccce ee sisserenes Number of volumes issued for home USC......-.---s--ee--0-+4 si 


This should state entire circulation for the year. One book lent 10 times counts 10 not 1. 
2Item 6 Summary of.property owned by institution Item 6 Property (concluded) 






























Grourids ., EP VEe che Orlcidia Gee lai| Dactascseeotetvedss| semaesers 


Buildings. ....». SCAR DOORS Om bbiatee ne baste 





iMiboshlabides Gore eater Tih CIE SOREN CREE ee tren ere 


Total property vivccccccncnncnne|Bessscrnessenesees ioneseene 


APParatus.. coe re cece cece een e ne vee [nenteseseneeratneces|ecegeecr ee 
Debts at end of year. ...+++eseee: 


Reibrary. wie silts avis aa’ eels ssi eectes teases areretl coasasyers 




















Museum Fe “sles eeeise pee eee On oe We cssenntacwi| conseceres Net property owned pro anced $ 
Otheriproperty >. <-->: Rvs at A ee ater eee aie PET INE Eee 
; “Item 7 Receipts 
(Item A) Total property used...... SaaS 
oe: Balance from 1924.....0ceeeee eee s [Desceccnssnssesens bear 
+Investments at beginning of year... |$...----sco--- |eeeecsees 
: t Tuition fees .....cccee rescence |rnsrsscsssecnsceres |esnsnareet 
Added to investments during year : 
1 From gifts and bequests... oo. |----ssscssssses+ [assesses ‘Room rent...... aivielel ete jelae et eterarectiol*) | Sernentenacarcarcan nracraa 
2 From income of former invest- Board Ridge ahe pies Me pr ayn lave lac aevere winiarelela {reaes=n eee oy Pee S 
MENS 0. 6 00 oo dhe 00 000 0 00 0 0 8 feccensncareesesssss | seseeneoes Other receipts from Aindentar mee oil eteacasen teers i 
SERCOM Other SOUTCES: 6 e/cralk 0 ols» | cesencrecearseescls eeayeee Tieaniel FrOat irvestrnentsn tebe acy ap-cousto aes Py Cale 
Tt yas aise Spice taretbistare oie muaias be ged 5 hatte alas Be Amount from maturing investments. |------+-+-+----- ae ee 


Depreciation or losses in  invest- Gifts and bequests. 2.6 0.060000e00. |-sssssssrsseneane:|-sueennen 


MENS seccccvverccveseieseressece 


(Item B) Net nd of 


eee eee oleee 


| || All other sources including temporary 


loan Sueteie sie alalstos Litichsletare aiote’e eke 8 
Totals tia waketeleie lees $ 


Se ETE 
a Do not include in this statement any figures for summer school or any figures included lin report for academic department. ; 
b Including real estate not uscd by institution, securities and cash on hand belonging to these investments. If this amount does not equal the 


investments reported at the end of last year, give reasons for difference in the amount reported here. u Wart) bhew } 
¢ Dehts must include mortgages, treasurer’s notes payable, unpaid instructors’ salaries, and all valid claims against the institution including any balanca 


due the treasurer for money advanced. 








investments af e 


re ee 





. 











 —— 


Pace 2 of New York REPORT 


66 


Item 8 Payments (concluded) 


EXPENSES OF CAPITAL OUTLAY™ 
32 
33 
34 
35 
36 


INVESTMENTS 


Equipment 


Shee eee emacs e ea eecessecccse Se a ey 


Rede eereccecersececsecccce 


Other capital outlay........... 


37 Amount transferred to investment fund..... cae 
Total payments for the year, 


Pewee eee ere scex since weeeccee 


eeeeeene Peewee eee rercessasceces 


¢ Balance at close of year... 


Total payments and balance... 


Item 9 Miscellaneous 


Give total receipts for the summer school 1924, $ 


Give number of university extension students: men 


Item 10 Affidavit of presiding officer 


STATE OF NEW YORK 


eAereeeemeenecscereeenee tess ececesececcsse 


Qcrmeareeeem ens aeeecRsereeneeterttenriecerseeuces, 


BP resident of ee 


State Control of Private Higher Education 


OTHER OBJECTS 


tee -: Total expenditures, $... 


~sssmeey being duly sworn, deposes and says that he. is 


ee eneeneseeeensensersuscccsreenesenenenseenstenensssenceeeccesacosne 


‘ Sawer ait - coro ferseaemrace tnsonessosubayersarovsasuissonesnnt:saveneeconmer’ icvenslasen ee ee ree 


a This should be the difference between the total of Item 7 and total expenditures, 
b Or corresponding officer. 


}4* 2008s LOE) SOF SSORM LADLE SS MAK PUTUS STERE SAT SE Sem SETOES 





PacE 3 oF New York Report 


State Control as Provided in the Laws of the States 67 


*Iteri 8 Payments 


OTHER OBJECTS 


EXPENSES OF GENERAL CONTROL 
1 Salaries of president, clerks and office assistants........--- 


2 Other expenses of administration......ssesseceeccscvvers 


; 
EXPENSES OF INSTRUCTION 
PiiGalavies Tom sMistructions cs ssc cabot senesaeastestaesvesciee 


4 Prizes and scholarships. Ratasaecpubus the asers esos’ 











S Supplies used in instruction.......seecsecsseeccerees cesar 














6 Other expenses of instruction.....ecrccccecestscssscsere 
EXPENSES OF OPERATION OF COLLEGE PLANT 
Wages of janitor and other. employees......s+esesereseve 
Fuel ....00.00- anise 000 sages ce bacccececesecascscressgoce 
Water, light and power,....esscccecececcenesssoessecnes 
Janitors’ supplies.... ect wie cwald Bele Sew aie ae 
11 Other expenses of operation of Dlantaecas ccs tes ae 


EXPENSES OF MAINTENANCE OF COLLEGE PLANT 
12 Repair of buildings and upkeep of grounds....... 


13 Repair.and replacement of eauipment..... weet aed ects 





14 Other expenses of maintenance of college plant.....-..-+ 
EXPENSES OF AUXILIARY AGENCIES AND SUNDRY ACTIVITIES 
15 Libraries ..... meters ade HICK OODUCL LNT 
16 Repair and replacement of books........ 
New books (capital outlay).......+++ 
Expenses of boarding pupils......sseee0+6 pels oiele 
Expenses of boarding and caring for teachers...,..+. 
RRECTeatiOMMestasisiaw ss steed a vice oigie rate ete dx aslo elsigis, csisia's 
Other auxiliary agencies and sundry deivivest 
EXPENSES ‘OF FIXED CHARGES 
8 TERNS Seb OUCHDOODRCET COLEOCE OOO CE CODED Los 
24 Insurance .....eevervsveses we esaeeehieesive fisenciesens les 
ZONELAXES sic's v0.01 Rate Ns ehitnnee shee aes 
26 Contributions and contingencies.....ecssseeeeeeveree gecesi 
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TABLE I 


ANALYSIS OF THE LAWS OF THE STATES GOVERNING THE INCORPORATION OF INSTITUTIONS OF HIGHER EDUCATION 


ee eee a aa ee 


Laws under which 
Institutions are 




























INITIAL CONTROL 











a ee eee ee 





CONTINUING CONTROL 





Incorporated Articles of Incorporation Approved By Minimum Standards Prescribed As To 
! 
STATES State Filed with 
“ County 
General . Educa- Charter Governor | Clerk or | Property, Number of ‘eee Require- 
Corpora | aSPeFho| aamnel, | Ceumty.or] Boarder | U'Gr=™ | Seesetary | Eadow.'| Members | Coursey | Admission | Rta 
lon . ? orney of State ment : . of Study 0 
Lawes Legislature ews Judge oe ig. | General without Sane tonteuction ments Degrees 
ee Approval 
Alabama.....0...-::- x a; se x sts (1) we es x aa ea (21 
Arizona...... Siejereteiniste x ws An are x ae Bi a a ae er a 
ATKATGAS aoe arce eer x an x : mie Ne a an (6) (16) a 23 
California O x we ae Fen ¥ ae x = a8 ath Aes (21 
Colorado......++-++.: x me ee are aR ae x * ea (17) m5 (21) 
Connecticut.......... x x es = ae “8 (2) we a ee 45 (24) 
Delaware......... oes x x sie ac ve x a5 ve ale os 21) 
District of Columbia. . x x ae A ar x : (9) (9) as 21) 
Bloridames scree cere x x x ~ Ho his bar, ts mA 21) 
Georeiarwcnceccn ste x ie x x she An a 2 eve Sc 55 23) 
Tdahows Nes:an wae es acs x 55 ate ne os aa x : ee Bit 40 (21 
Hilmois oon Alanis x x im oe xe; an x a 5 AS aA ai 
Tnidtasiaem cesta ieitnosete x x ite ee ie AG x Re Pts Ke AP 21 
Towacnctesres Nocdoet x 53 Sa ne ie are x 35 Ps ma an ee 
Kansas neue Sreraveleyei ars x ae ar a x ake oe . aa Se ae 21) 
Kentucky..........-- x - Se Be as i x a ae e on (21) 
Whee See ican. x x ae ms as =s x ae ae (18) me (25) 
ainleusenecicee nest > x a se fe te x < Ss ate se 
Maryland..... Re uietee,© 36 x x ng oe ae, a ve (19) (19) 23 
Massachusetts........ se x x 2 An At oo a es ic oi (27) 
Michigan isc scce sc oel x soe ae a8 : Oe (2) (4) ee es a (21) 
Minnesota. a. x spa as BG x we ae oe ia 21 
Mississippi os x Z ae ae . x 35 oa oe aye aA 31 
Missouri ssaeeeticmeuies x as aes x O a. 3% a Ac on 21 
Monitanate ces sisisteiier x AG At 0 x oe ri oe Fe et 
Nebraskasecaadscniece x oi an x 5 a (5) a we Ae 21) 
Nevada...... Perotetererer x a a Xs é xs a <a BF, 5e (22) 2 
New Hampshire...... x x Ae ne ite x es a rats a5 (22) 5 
nee i See tredcca x Be = a ; ae Fie es (19) AD oy a 
ew Mexico......... x a ee x : Se bs ee ae oe 
News Yorkecnceee sees xs ae x as J e (6) (6) (20) (20) 23) ai 
North Carolina....... x 2 (3) 3 ote x (10) (10) (20) (20) 23 re 
North Dakota......:. x aa ae - ; x Ae “a ae 7 21 _ 
Ohiogeesmte teste ales x <3 (3) 5 x (7) (11) (11) es (23 os 
peer ho Seas ROAMO CLG x re (3) es = ae oe SA ae en oie 
Tegouees ree eee x vs 23 x ‘ ae ie ae nf ae 
Pennsylvania......... x a x x ae a (8) (12) (13) (14) (23) a 
Rhode Island......... x x oa es as < We aye os ae (22) = 
South Carolina....... x 5 x a oe a Es. ae (22) na 
South Dakota.. x a6 = x ‘ (15) (15) ae (21) ec 
Tennessee...... x a ic x 56 axe se 5 (21) : 
Texasimorecstncterceic x 56 eve x : ae we 50 (21) 
Utah ts Sita ssitee ce x So Sc x : oe ee aes 
Vermontiepicen cic veien se x bs Be as . ae we 26) 
Virgintadic ccetsreticlsiers< x ie x x = : An ce (28) 
Washington,......... x a Ss ae x 2 ae = 21) 
West Virginias. is. on. x ae m4 a ‘ bas 21) 
"WiscOnSiN.....s086s 5 x x x 22) 
Wyomiineenseeeiee x aA x (21) 
"TL Obalacicsisteeitersl ons 46 14 10 7 6 1 28 6 7 11 4 * 





(1) Amendments approved by the governor. 
(2) Approves as well as files. . 
(3) License to confer degrees conferred by the educational 
agency. ies 
(4) $100,000 except denominational colleges. 
(5) $100,000. ; 
(6) $500,000; $50,000 for a medical college. 
(7) $25,000. ea 
(8) $500,000 except where support is. equivalent. 
(9) Articles of incorporation must include the number and 
designation of professorships; also statement of courses 
(10) Must be adequate. _ <> : 
(11) The superintendent of public instruction approves courses 
and suitability of faculty before degree-granting power Is given. 
(12) Eight; a college for a special subject may have three 
professors and two instructors. 
(13) Four years or equivalent. , 
(14) Four years of high school or equivalent. 








"a (15) Must set forth the number and designation of professor- 
ships. : 

(16) Standard collegiate or university courses. 

(17) Must be of the grade of a university or college. 

(18) Four years beyond an approved high school. 

(19) As approved by the state board of education. 

(20) Four years high school; four years college; or equivalents. 

(21) Unusually conferred by like institutions; or may confer 
degrees. 

(22) No mention of degrees. 
4 (23) Educational agency empowered to grant license to confer 

egrees. 

(24) As defined in the articles of incorporation. 

(25) If courses are four years beyond approved high school. 

(26) Must be authorized by the legislature. 

(27) Granted by the legislature upon recommendation of the 
department of education. . . 

(28) Approved by the state corporation commission. 





_ (29) Twenty years unless otherwise stated in the articles of 
incorporation. 
(30) Grants licenses to confer degrees; power to visit and in- 
spect, or to revoke license is not stated. 
(31) Approved by governor, attorney-general and secretary of 
state. 
* The totals for degree are: 
26 as usually conferred in like institutions. 
7 no mention of degrees. 
2 authorized by the legislature only. 
10 license from educational agency. 
1 approved by corporation commission. 
1 approved by the governor. attorney-general and 
secretary of state. 
1 as defined in the articles. 


on Sr 





(EAE IE RLS 


STATE CONTROL AS DEFINED IN THE CHARTERS OF 
THIRTY-NINE COLLEGES AND UNIVERSITIES 


BRIEF 


A. Laws under which private colleges* were founded: 
Most of the colleges were chartered by special act of the legislature. 
B. Initial control: 

Generally the states limited in the charters of colleges the maximum 
amount of property the colleges could hold. 

The earlier policy of the states to limit the maximum amount of 
property is practically discontinued. 

No religious test is imposed as a basis for admission. 

States do not limit the courses that colleges offer. 

States generally place no limitations on the qualifications of the staff. 

States grant colleges the power to confer the usual degrees and 
diplomas. 

States exercise but little control over the managing boards of colleges 
through appointment of members, or through representation of 
state officials upon the boards. 

C. Continuing control: 

The charters of three institutions contain a clause limiting the tenure 
of the charter. 

The charters of thirteen institutions reserve to the legislature the 
right to amend or repeal them. 

But few institutions are subject to visitation by the state or an agency 
of the state. 

D. Activity of the states in the administration of the Colonial colleges: 

Certain states attempted to gain greater control over their respective 
colleges during the first decades following the revolution. 


Massachusetts Harvard 

Connecticut Yale 

Pennsylvania University of Pennsylvania 
New York Columbia University 

New Hampshire Dartmouth College 


The previous chapter set forth the control of the state over 
e incorporated institutions of higher education as found 


privat 
1The term college as used here includes private universities. 


69 


70 State Control of Private Higher Education 


in the laws of the states under which such institutions are incor- 
porated. This chapter! presents state control as defined in the 
charters of the private colleges and universities. 

Any consideration of state control would be incomplete without 
an examination of individual charters. Many of the colleges and 
universities were chartered by state legislatures before general 
corporation laws were passed and such controls as exist must be 
found in them. General corporation laws were enacted during 
the last half of the nineteenth century to care for the rapidly 
increasing number of corporations. For instance, Pennsylvania 
enacted incorporation procedure in 1874, Maryland in 1867, and 
Hlinois in 1872. The number of colleges and universities char- 
tered by legislature may be estimated from the following table 
showing by decades the number of institutions established.2 


a ee eS SS 





Decade Patents Decade Tees 

5G30<1 770 ik ene eee 12 1860-1869 82 
LZOOP TF SON. eet ce ee Ai 1870-1879 69 
TUOGATZOD NE At ene aor ne ta 9 1880-1889 82 
LEDOnT BOO Giant mee ne cee nee 15 1890-1899 98 
LOLOFI GIO Meee Ue ee Tee 9 1900-1909 44 
TO2O-1 O20 Hie ie wie ee 20 IQIO-I9I19Q oe 
TOSO-IS3O La bau Cm 40 

TSd0e1 SA Oa uno. ea 58 

TOEO= ISSO ule ehh ee a7, 





In the preceding chapter it was found that fourteen states still 
provide for the chartering of colleges by special legislation. The 
practice of incorporating under general law began about 1880. 
In view of these facts and the evidence in the table above it is 
estimated that 70 per cent of existing institutions of higher edu- 
cation came into existence by special act of legislation. A full 
consideration of state control, then, must include the chartered 
institutions. 

The topics considered are: 

A. Laws under which the colleges were founded. 
B. Initial control through 
a. Limitations pertaining to property, admissions, courses, 
staff, and degrees. 


1The statements and conclusions in this chapter pertain only to the thirty-nine 
institutions examined; they apply generally in so far as the institutions selected are 
representative. 

* Taken from data in Bureau of Education Bulletin No. 28, 1922, Statistics of 
Universities, Colleges, etc. 


State Control as Defined in the Charters of Colleges 71 


b, Limitations in the managing board with respect to ap- 
proval of membership by the state, appointment of mem- 
bers by the state, and representation of state officials or 
state appointees. 

C. Continuing control through 

a. Limited tenure of the institution. 

b, Reservation of power to the legislature to amend or repeal 
the charter. 

c. Visitation by the state through the legislature or educa- 
tional agency. 

D. Activity of the respective states in the administration of Col- 
onial colleges. 

The analysis of the charters of the thirty-nine institutions is 

contained in Table II. 


LAWS UNDER WHICH THE COLLEGES WERE FOUNDED 


Most of the colleges were chartered by special act of the legis- 
lature. Until 1880 all the colleges considered, except Johns 
Hopkins, established in 1867, and Union, established in 1795, re- 
ceived charters from the legislatures of their respective common- 
wealths. Since 1880, the seven institutions considered were in- 
corporated under general law. Even in the state of New York, 
where the Regents of the State of New York have operated as a 
chartering agency since 1784, such institutions as New York Uni- 
versity, University of Buffalo, Vassar College, and Syracuse 
University were chartered by the legislature of the state. Union 
College is the only one chartered by the Regents. However, it 
was provided in the charters of these institutions that they were 
subject to regulatory control of the Regents. The fact that most 
of the colleges were chartered by special act has this significance : 
The control of the state is limited to the reservations in the charter, 
except in so far as the courts shall “take care that the objects of 
the trust are duly pursued, and the funds rightly appropriated.” 
(See page 31.) 

INITIAL CONTROL 


Generally the states limited in the charters of colleges the maxt- 
mum amount of property they could hold. Evidence in the preced- 
ing chapter shows that the general laws of the states, in a few 
instances only, prescribe the minimum amount of property which 


72 State Control of Private Higher Education 


an institution of higher education must have before incorporation 
and in no instance the maximum amount. On the other hand, most 
of the colleges chartered by special act, especially the earlier ones, 
were limited in their maximum property holdings. 

The limitations were imposed in one of three ways on amount 
of (a) real estate, (b) annual income, and (c) total property, real 
and personal. Illustrations are: 


(a) Harvard: They and their successors shall and may purchase 
and acquire to themselves, or take and receive, upon free gift and 
donation, any lands, tenements, or hereditaments, within the jurisdic- 
tion of Massachusetts, not exceeding five hundred pounds per annum, 
and any goods and sums of money whatsoever. [1] This limitation 
characterized the Colonial colleges. 


(b) New York University: Yield an annual income not exceeding 
$20,000. [2] [Other examples are Boston University and Vassar 
College. ] 


(c) Tufts College: Said corporation may hold real estate and per- 
sonal property, to an amount not exceeding fifty thousand dollars, to 
be devoted exclusively to the purposes of education. [3] [Other 
examples are Duke University, University of Pittsburgh, and Welles- 
ley College. ] 


The earlier policy of the states to limit the maximum amount of 
property is practically discontinued. Prior to the Dartmouth deci- 
sion in 1819 all the colleges contained maximum property clauses 
in their charters. Between this decision and the Civil War seven 
of the institutions considered were restricted, six were not. Since 
the Civil War only two of the fourteen institutions were limited. 
Noteworthy in this connection is the fact that none of the states 
in their laws prescribe maximum limitations on the amount of 
property an institution may hold. 

The limitations on property in the earlier charters have been 
raised or removed as the institutions increased in size and endow- 
ment. Wellesley College, for instance, was limited in its first 
charter in the amount of real and personal property to $600,000. [4] 
In 1884 this was raised to $5,000,000 ; again in 1911 to $10,000,000; 
and in 1921 to $20,000,000. [7] The restriction in the charter 
of New York University was removed in 1893; [8] from Duke 
University in 1911, [9] and from Harvard University in 1889. [10] 

It is evident that the policy of states with regard to limiting 


State Control as Defined in the Charters of Colleges 73 


colleges in the amount of property has changed from restraint 
to freedom. Limitations are being removed from established 
institutions and new ones are founded without restriction. The 
control of the state over institutions of higher education by this 
means has practically ceased. 

No religious test is imposed as a basis for admission. Most of 
the colleges were founded through the efforts of religious de- 
nominations: for instance, Harvard by the Congregationalists, 
Princeton by the Presbyterians, Rutgers by the Reformed Dutch, 
Ohio Wesleyan by the Methodists, Brown by the Baptists, Notre 
Dame by the Congregation of the Holy Cross, and Drake by the 
Christians. (See the catalogues of the respective colleges.) 
Nevertheless, such colleges are public to the extent that their 
doors are open to all applicants regardless of religious beliefs. 
The intent of the states that they be kept open is evident from 
the restraining clauses in the charters. Three citations illustrate: 


Columbia University: Make such laws . .. as they shall think best 

_. so that they ...do not extend to exclude any person of any 
religious denomination whatever from equal liberty and advantage 
of education, or from any of the degrees, liberties, privileges, benefits, 
or immunities of the said college, on account of his particular tenets 
in the matter of religion. [11] 

University of Pittsburgh: . . . nor shall any person, either as 
principal, professor, or pupil be refused admittance for his conscien- 
tious persuasion in matters of religion. Dike 

University of Chicago: Beyond the requirement that “three-fifths 
of the trustees shall be members of the Baptist churches” [13] the 
charter prescribes that “no other religious test or particular religious 
profession shall ever be held as requisite for election to said Board 
or for admission to said University or to any department belonging 
thereto... or for election to any professorship, or any place of 
honor or emolument in said corporation, or any of its departments or 
institutions of learning. [13] 


Similar clauses appear in approximately one-half the charters 
examined. States have not prescribed minimum standards for 
admission. Their concern has been that colleges receive students 
irrespective of their religious opinions. This policy still persists. 

States do not limit the courses that colleges offer. Except in 
general terms, the charters usually say nothing about the subjects 
of instruction. The purpose of the college is usually stated to give 


74 State Control of Private Higher Education 


the youth training in the “arts and sciences,” [14] or “learned 
languages, and in the liberal arts and sciences.” [15] Instances 
departing from this and limiting the instruction follow: 


Tulane University: I mean to foster such a course of intellectual 
development as shall be useful and of solid worth, and not be merely 
ornamental or superficial. [16] 

Rutgers University: The charter requires that courses in divinity 
and English be given. [17] 

Washington University: The institution is restrained from offering 


instruction “either sectarian in religion or party in politics .. . in any 
department.” [18] 

Brown University: ... public teaching shall, in general, respect 
the sciences ... sectarian differences of opinions shall not make 


any part of the public and classical instruction; although all religious 
controversies may be studied freely, examined and explained by the 
president, professors and tutors, in a personal, separate, and distinct 
manner, to the youth of any or each denomination. [19] 


The citations from the charters of Tulane and Rutgers Univer- 
sities are not limitations; the latter two are, but are confined 
primarily to sectarian differences. Aside from these, no limitations 
are prescribed. Evidently, it is the intent of the states that in- 
corporated institutions of higher education shall be free to offer 
the courses they deem best. 

The states generally place no limitations upon the qualifications 
of the staff. The clauses in the nine charters which in any way 
restrict the members of the staff pertain to membership on the 
managing board or to religious belief. It is prescribed in the 
charters of Rutgers University, University of Pittsburgh, and 
Lehigh University that the members of the instructional staff 
shall not be eligible for membership on the board. No religious 
test can be imposed upon the staff of the University of Pittsburgh, 
University of Buffalo, Tufts College, Northwestern University, 
Washington University, and the University of Chicago. Other- 
wise, no restrictions are imposed. It is the policy for states to 
give institutions freedom in the employment of the staff. 

The states grant power to confer the usual degrees and diplomas. 
Except in two institutions general power has been given to the 
colleges to confer such degrees and literary honors as are usually 
conferred by like institutions. Tufts College was given power to 
confer the usual degrees except in medicine. [20] This restric- 


State Control as Defined in the Charters of Colleges 75 


tion was removed in 1867. [21] The original charter of the Uni- 
versity of Buffalo defined in detail the standard for the degree 
of medicine and the procedure followed in awarding it. The 
year in which the University of Buffalo was chartered (1846) was 
the same year in which the American Medical Association was 
organized. The activities of that Association are reflected in the 
provisions of the charter. Note in the quotation from the charter 
three features: (a) that applicants for the degree of medicine 
meet certain standards, (0) that the degree be approved by the 
profession, and (c) that the medical staff receive no part of the 
Tee, 


The council, [managing board] whenever they shall organize the 
medical department of such university, shall appoint not less than 
twenty persons, being practicing physicians and surgeons, to be 
curators of the medical department of said university, and the presi- 
dent of the medical society of the county of Erie, and the censors of 
the state medical society appointed for the senatorial district in which 
said university shall be situated shall be ex-officio curators thereof. 
[22] 

On the nomination of the medical faculty, and with the written 
consent of at least three of the curators ... grant diplomas con- 
ferring the degree of doctor of medicine. ... But no person shall 
receive such diploma unless he shall have pursued the study of medical 
science for at least three years after he attained the age of sixteen 
years, with some physician and surgeon, duly authorized by law to 
practice his profession; and shall also after that age have attended 
two complete courses of all the lectures delivered in some incorporated 
medical college, the last of which courses shall have been delivered 
by the medical faculty of said university. [23] 

Medical graduation and diploma fees shall not be paid to the 
medical faculty. [23] 


The above does not illustrate state control so much as control by 
a professional group. The charter of Buffalo is distinctive in this 
regard. It is the policy of the states to give institutions freedom 
in conferring degrees. 

Summary.—Generally, chartered institutions are not now re- 
stricted in their power to hold property, admit students, offer 
courses, employ staff, and confer degrees. Two concerns persist, 
—one, that the religious opinion of any applicant shall not bar him 


76 State Control of Private Higher Education 


from admission; the other, that the property and endowment be 
devoted whoily to purposes of education. 

The states exercise little control by imposing limitations upon 
the membership of the managing board. It is difficult to estimate 
the extent of the control exercised by states over institutions by 
any activity with regard to the membership of the managing boards. 
The means of control are three: (a) initial approval of the mem- 
bership, (0) appointing members, (c) placing state officials upon 
the board. Regarding the first, it is the usual custom for in- 
corporators in their petition to the legislature to name the proposed 
members of the managing board and the manner of succession. 
The legislature approves this board and, since the names are given, 
is in a position to pass upon the general fitness of the members. 
No change can be made in the composition of the board when it is 
once approved or the manner of their succession without consent 
of the legislature, unless otherwise provided in the charter. Herein 
is a certain control. However, there is no policy regarding it. 

It is not the policy for the state to appoint members of the 
boards. One exception is William and Mary, which became a 
state institution in 1906, resulting in the appointment of members 
by the governor by and with the consent of the senate [24], and 
others are Rutgers University and Dartmouth College which are 
recipients of benefits from the Federal Land Grant Act of 1862 
in the use of which they are supervised by boards of ex-officio state 
officers or appointees of the state. Except in these three cases 
no members on the managing boards of the colleges considered 
are appointed by the state. 

Reference to the composition of the several boards given in 
Table II, facing page 94, shows that it is not the policy of state 
officials to serve as representatives on boards. The strength of the 
various agencies represented on the boards, including the state 
officials, appears in the following table. Ex-officio state or city rep- 
resentation constitutes a very small per cent. For comparison, the 
membership of the original and present boards is given. 

It is evident from this table that the states have a very small con- 
trol through representation upon the managing board. The fact 
that the present percentage is one-half the original indicates that 
there is no disposition to increase control by this means. 

In summary it may be said regarding the initial control of the 
state over chartered institutions of higher education that the 


State Control as Defined in the Charters of Colleges 77 
ERTS SSO SLE TER a) Ee ry 


: Original Charter Present Charter 
Agencies Represented is 


on the Board * 
3 Number Per Cent | Number | Per Cent 











Hx-Officio. State or City ...k. 2. J... 33 4 21 2 
Lay Members Not Ex-Officio ..... 539 68 609 63 
Denominational Members ......... 216 i) 200 21.5 
AlumnisMembersas @ fear a re 124 13.5 
Paculty Members’. ...5¢¢..00) 0% os uae I O 
Lota tence seep y. (ee a ee di ke 796 100 966 100 


* The Board of Overseers of Harvard University is not included since it has no 
corporate powers in the management of the institution. 


present policy, as observed from the charters, is freedom. Through 
boards, practically free from state representation, institutions de- 
termine their own policies over the amount of property, ad- 
missions, courses, staff, and degrees. The state is only concerned 
that religious tests not be applied to applicants for admission 
and that the property be devoted wholly to purposes of education. 


CONTINUING CONTROL 


The charters of three institutions contain a limited tenure clause. 
The University of Southern California, Baylor University, and 
Saint Xavier College are limited in the tenure of their charters, 
respectively, to fifty, fifty, and thirty years. The time has subse- 
quently been extended through renewal. It happens that these 
three institutions are located in states which provide a limited 
tenure in their general laws. (See Table I, facing page 68.) Since 
so few contain the limitation it is evidently the policy that no 
control be exercised through this means. 

The charters of thirteen institutions reserve to the legislature 
the right to amend or repeal them. Of the institutions considered 
one-third are subject to further action by the legislature by virtue 
of a reservation in their charters empowering the legislatures to 
alter or repeal them. (Included here is Union College which 
is subject to such action by the Regents of the University of 
New York.) All the institutions except two are in the three states, 
Massachusetts, New York, and Ohio. Yale and Georgetown Uni- 
versities are the two exceptions. The eleven others are: Union 
College, Western Reserve University, New York University, Ober- 
lin College, Saint Xavier College, Ohio Wesleyan College, Univer- 
sity of Buffalo, Tufts College, Vassar College, Boston University, 


78 State Control of Private Higher Education 


and Syracuse University. Although the percentage of states is 
small a greater percentage of institutions is affected since the three 
states containing practically all of the institutions in which such 
reservations appear are the larger centers of institutions of higher 
education. 

In connection with this reserved right to amend or repeal, the 
limitation upon the action of the state should be considered. Opin- 
ions of the Supreme Court of the United States indicate that the 
primary function of the state is to see that the “objects of the 
trust are duly pursued and the funds rightly appropriated,’ and 
that any action by the state under this reserved power must be 
necessary ‘‘to secure either the object of the grant or any public 
right” and not defeat or substantially impair the object of the 
grant, or any vested rights under it.” (See page 30.) Further 
support of this opinion is found in the laws of New York state 
under which Syracuse University and Vassar College were char- 
tered. These two institutions are subject, as stated in their 
charters, to the provisions of Title 3, Chapter 18, of the Revised 
Statutes. [25] Two clauses from this chapter are pertinent here, 
one containing the reservation, and the other directing how the 
state shall act. They are: 


The charter of every corporation that shall hereafter be granted 
by the legislature shall be subject to alteration, suspension, or repeal 
in the discretion of the legislature. (Sec. 8.) 

No officer or director of a corporation shall be suspended or removed 
from office, otherwise than by the judgment of the supreme court 
in a civil action ... and all actions and proceedings against a cor- 
poration when the relief sought, or which can be granted therein, 
shall be the dissolution of such corporation, or the removal or suspen- 
sion of any officer or director thereof, shall be brought by the attorney- 
general in the name of the people of the state. (Sec. 20.) 


It appears, therefore, that any action by the state in altering the 
charter of an institution must be such as can be justified in the 
courts. 

But few institutions are subject to visitation by the state or the 
educational agency of the state. Regulation by the state is ob- 
tained in one of three ways: (a) visitation by the educational 
agency of the state, (b) board of overseers composed wholly or 
largely of state officers or appointees of the state, (c) annual 
reports to the legislature. Of the institutions considered, those 


State Control as Defined in the Charters of Colleges 79 


subject to visitation by the educational agency are all located in the 
state of New York. The Regents of the University of New York 
are given visitorial power.t For instance, the charter of Syracuse 
University contains this clause: 


The said University shall be subject to the visitation of the Regents 
of the University of this State, in the same manner and to the same 
extent as the various colleges of this State. [26] 


Boards of overseers representing the state are not the practice, 
The most outstanding instance is Harvard University whose 
board of overseers until 1865 was composed largely of state 
officials or appointees of the state. (See page S1 ff.) There are 
visitorial boards at Dartmouth College and Rutgers University 
where the state exercises a supervisory control over the use of 
the funds it donates; and at the University of Pittsburgh where 
the State of Pennsylvania provides an advisory board to approve 
the action of the trustees of the University in regard to the school 
of mines and engineering, toward the establishment of which the 
state appropriated $50,000 in 1895. The duties of the board of 
advisors are thus defined in the appropriation act: 


The control of this School shall be vested in the Trustees and 
Faculty of the Western University of Pennsylvania [University of 
Pittsburgh], and the Governor, the Secretary of Internal Affairs, and 
the State Superintendent of Public Instruction, acting as an advisory 
board on behalf of the Commonwealth. The curriculum and the en- 
trance examinations shall be adopted by the action of the Faculty 
and Trustees of the University, and be approved by the advisory 
board on behalf of the Commonwealth. [27] 


In the charter of Tufts College, the State of Massachusetts re- 
serves the right to appoint a board of overseers “with all necessary 
powers for the better aid, preservation, and government thereof.” 
[28] (This board has never been appointed.) I-xcept where the 
state is a party in the support of the institution, it does not exercise 
control through a visitorial board. 

Three institutions are required to render reports to the legisla- 
ture. An amendment to the charter of Yale University in 1706. 
directs the president and fellows to “annually render to the Gen- 
eral Assembly an account of the receipts and expenditures of the 
moneys belonging to said college.” [29] The two other: institu- 


2 Concerning the responsibilities of the Regents see page 79. 


80 State Control of Private Higher Education 


tions are the University of Pennsylvania and the University of 
Pittsburgh. These have received generous support from the state. 
The clause in the charter of the University of Pennsylvania is 
cited later. (See page 88.) Regarding the University of Pitts- 
burgh, the state of Pennsylvania in the act appropriating to the 
institution in 1895 funds for the establishment of a school of 
mines and mining-engineering directs the institution to render 
annually 


... to the Superintendent of Public Instruction a statement of the 
‘course of study which has been pursued, and such other information 
in relation to the work of the School as may be necessary in order to 
a full understanding of its operation. The Trustees of the University 
shall, furthermore, annually submit*to the Auditor General a state- 
ment of the manner in which all funds received have been applied 
during the year for which the report is made, which report shall be 
embodied, together with the report hereinbefore provided for, in the 
annual report to the Superintendent of Public Instruction. [27] 


It is not the policy for states to require annual reports from 
chartered institutions except where the states contribute largely 
toward their support. 


ACTIVITY OF THE RESPECTIVE STATES IN .THE ADMINISTRATION OF 
THE:~ COLONIAL COLLEGES 


The Colonial colleges have been exposed longer to all the social 
and political struggles that attended the rise of states and, con- 
sequently, register more clearly the efforts at state control and 
trends in policy. The nine institutions are: 











Institution State Date 
Piarvardius mi Versityy te oe osetia ters Massachusetts 1636 
Williamvand' Mary College) sa) .1400.2.. Virginia 1693 
ValewMniversityyeiiveak cities ae eleaistrc: Connecticut 1701 
Princeton Universitvigoue. accent New Jersey 1746 
University of Pennsylvania 0230. 34\-!.: Pennsylvania 1753 
Columbia winiversityeapiacee ns wee rete New York 1754 
Brown WWAiversity vy en ae sites siete uote Rhode Island 1764 
Dartmouth Collegeneer we esis New Hampshire 1769 
RA Gers i WNVErsity wae sats nies t ats New Jersey 1770 





Certain states attempted to gain greater control over their 
colleges during the first decades following the Revolution. Espe- 
cially evident is the effort of the Colonial states to secure control 


State Control as Defined in the Charters of Colleges  8&t 


of their respective colleges during the years when they were 
defining functions in their new capacity as states. No change 
Was registered in the charters of William and Mary, Princeton, 
Brown, and Rutgers. These are passed without consideration. 
In the cases of the other five, strenuous efforts were made by 
the respective states that resulted in changes in their charters. The 
greatest activity came between 1779 and 1820. During this period 
the composition of the Board of Overseers of Harvard University 
was changed four times.t. The charter of Columbia (King’s 
College) was changed twice; that of the University of Pennsyl- 
vania three times; Yale, once. During this period New Hamp- 
shire attempted to change the charter of Dartmouth. The 
efforts of the states to amend charters quieted after the Dartmouth 
decision by the United States Supreme Court in 1819. This deci- 
sion closed to states any action on their part, unless power was re- 
served, without consent of the trustees of the institutions concerned. 
On page 94 are graphically presented the changes that took place 
in the boards. The participation of the state in the management 
of the institutions is represented by the percentage of the member- 
ship on the boards who are state officials or appointees of the state. 

There are evident in the graphs three periods: (a) little par- 
ticipation by the states when the institutions were chartered, (D) 
great participation during the first decades following the Revolu- 
tion; and (c), more recently, little or no participation. There 
follows a brief account of the activities of the states in the control 
of the five institutions. 

Harvard University—Harvard College was established by vote 
of the General Court of the Colony of Massachusetts in 1636, the 
Court giving four hundred pounds towards its support. ‘Twelve 
very eminent men of the colony were appointed by the Court in 
1637 to “take orders for a college at Newton,” [30] afterward 
Cambridge. The interest of the commonwealth in the institution 
as marked by these first acts continued into the nineteenth century 
both in giving financial aid? and participating in the oversight 
of the college. 

The management of the affairs of the college by act of 1642 was 
placed in a Board of Overseers consisting of the “Governor and 


1 The corporation was not changed. 

2Prior to the Revolution, Massachusetts contributed toward the College 18,900 
acres, 23,403 pounds and the revenue from Charleston Ferry. Clews, ‘“‘Educational 
Legislation and Adminisistration of the Colonial Governments, p. 501. 


82 State Control of Private Higher Education 


Deputy-Governor for the time being, and ali the magistrates of 
the jurisdiction, together with the teaching elders of the six next 
adjoining towns, and the president of the college.” [31] This 
board of overseers managed the institution until 1650, at which 
time a charter was granted. This charter created another body, 
the “President and Fellows of Harvard College,’ consisting 
of seven persons, the president, five fellows, and the bursar, and 
vested in them the corporate powers. The body had indefinite 
tenure, and election was by cooptation “procuring the presence of 
the overseers of the college and by their counsel and consent.” [32] 
Under this charter of 1650 the state exercised no control through 
the corporation, but retained representation on the Board of 
Overseers of 74 per cent. 

Further amendment in 1657 in the form of an appendix to the 
charter of 1650 granted greater powers to the corporation, the 
president and fellows. A word about the functions of these two 
boards will aid in understanding the strength of the state’s con- 
trol at this time and later. The corporate management of the 
college rested with the president and fellows. The charter of 
1650 gave this body power 


to make from time to time such orders and by-laws, for the better 
ordering and carrying on the work of the College, as they shall think 
fit; provided the said orders be allowed by the Overseers. [34] 


The appendix to the charter in 1657 gave the president and 
fellows power to act without first securing the consent of the 
overseers; the function of the latter was limited to supervision. 


The corporation shall have power, from time to time, to make such 
orders and by-laws, for the better ordering, and carrying-on of the 
work of the College, as they shall see cause, without dependence upon 
the consent of the Overseers foregoing; provided always, that the 
corporation shall be responsible unto, and those orders and by-laws 
shall be alterable by the Overseers, according to their discretion. [35] 


The functions as thus defined continue to date. 

The corporation as constituted in the charter of 1650 has not 
changed. The Board of Overseers has changed several times. 
Since in these changes the activity of the state is evident the 
several changes are noted. 

The constitution of the Commonwealth, 1780, redefined the 


State Control as Defined in the Charters of Colleges 83 


membership of the Board of Overseers in conformity therewith 
by naming the governor, lieutenant-governor, council and senate 
to take place of the former state officials. By this change the 
participation of the state in the membership was 86 per cent. 

The Act of 1810 again reconstituted the board to consist of the 


Governor, Lieutenant-Governor, Counsellors, President of the Sen- 
ate, and Speaker of the House of Representatives of the Common- 
wealth, and the President of Harvard College for the time being, 
with fifteen ministers of Congregational churches, and fifteen laymen, 
all inhabitants within the State. [36] 


The large number of laymen and ministers who were not repre- 
sentatives of the state reduced the percentage of state participation 
to 39 per cent. Two years later, however, this act of 1810 was re- 
pealed and the former organization restored, making the percentage 
again eighty-six. But in 1814 the Act of 1812 was repealed and 
that of 1810 re-enacted with the addition of the senate as part of 
the board. The percentage now was 68. These rapid changes 
are bewildering. It is not a wonder that the Corporation addressed 
a memorial to the General Court in 1812 taking exception to the 
representation of certain state officials upon the Board of Over- 
seers. The following extract is significant as a statement of 
policy: 

_, most important benefits would accrue to the seminary, from a 
body of Overseers, coming not incidentally and casually to the duty; 
but chosen as vacancies should occur with special reference to the 
object. . . . It cannot be denied that the members of the Senate must 
necessarily, as a body, be under disadvantages for the efficient and 
regular discharge of many of the duties of Overseers. Their con- 
nection with the university depending upon the contingency of an 
annual election, must, it is apprehended, have some effect to dis- 
courage a disposition to enter thoroughly, and systematically, into 
the affairs of the establishment. [37] 


No further changes were made in the composition of the Board 
of Overseers until 1851 and, again in 1865. These were the 
last. 

The Act of 1851 removed the senate from membership, defined 
the tenure as six years, discontinued the requirement that fifteen of 
the members be ministers, and made election of the thirty members, 
not ex-officio, by joint ballot of the senators and representatives. 


84 State Control of Private Higher Education 


The governor, lieutenant-governor, president of the senate, and 
speaker of the house of representatives of the Commonwealth 
and the secretary of the board of education were ex-officio repre- 
sentatives. [38] Including the appointees by the senators and 
representatives this change brought the participation of the board 
to 94 per cent. 

In 1865, in response to a sentiment “that it would be better 
for the community and for the interests of learning, as well as for 
the University, if the power to elect the overseers were transferred 
from the Legislature to the graduates of the College,” [38] the 
charter was further amended to place, thereafter, the appoint- 
ment of the members, except the president and treasurer, ex- 
officio, in the hand of the alumni..[38] At this point state repre- 
sentation ceased. 

Summarily, several observations are possible concerning the 
control of the state of Massachusetts over Harvard University 
through participation in the membership of its boards: 

I. ‘The state has never maintained any control through mem- 
bership in the Corporation. 

2. The activity of the state during the decades following the 
Revolution registered frequent changes in the composition of the 
Board of Overseers, the per cent of state participation ranging 
from 39 to 94. 

3. The control maintained by the state through representation 
on the Board of Overseers ceased in 1865, and, thereafter, was 
placed with the alumni of the institution. 

Representation upon the board is not the only means provided 
for control by the state over Harvard University. The Constitu- 
tion of 1780, in which the charter of 1650 was confirmed, contains 
this provision: 


. nothing herein shall be construed to prevent the Legislature of 
this Commonwealth from making such alterations in the government 
of the said University as shall be conducive to its advantage, and the 
interest of the republic of letters, in as full a manner as might have 
been done by the Legislature of the late Province of the Massachusetts 


Bay. [39] 


Note that the last clause restricts the legislature of the state 
to action within the power of the legislature of the province. Since 
no reservation of power to the legislature over the corporation was 


State Control as Defined in the Charters of Colleges = 8&5 


contained in the charter of 1650, and in such case the Dartmouth 
decision prevents a state from making any change without consent 
of the trustees, it is doubtful if this provision in the constitution 
is effective. Furthermore, Massachusetts has recognized the right 
of the president and fellows and overseers to validate any change 
by their consent. In every act changing in any way the charter of 
the institution, except the Act of 1812, which was in effect but 
two years, the legislature has included a clause that the Act in 
question was not valid until the overseers and president and 
fellows accepted the provision. [40] It may be concluded that the 
state of Massachusetts, other than through the courts, has now 
little or no direct control over Harvard University. 

Yale University—Yale College was chartered by the General 
Court of the Colony of Connecticut in 1745, but since 1701 had 
operated as a Collegiate School under the management of “Trus- 
tees, Partners, and Undertakers.” [41] Unlike Harvard, the 
functions of management and oversight were united in one cor- 
porate body named in the charter of 1745 as the “President and 
Fellows of Yale College,” consisting of eleven members, tenure 
indefinite, and election by codptation. Power to serve the two 
functions are thus defined in the charter: 


Oversight, full and complete liberty, power, and privilege to furnish, 
direct, manage, order, improve, and encourage from time to time and 
in all times hereafter the said collegiate school. [42] 


Participation by the state in the membership of the board came 
in 1792 soon after it entered upon statehood. The occasion was 
the further support of the institution. Up to this time the 
state had contributed toward the support of the college, 1,500 
acres, 25,403 pounds, and the income from the New Haven 
Wharf, [44] but did not ask for representation. In 1792, how- 
ever, a grant of certain “balances on all taxes,” etc., [45] was made 
under the condition that the president and fellows be enlarged to 
include the “Governor, Lieutenant-Governor, and six senior assist- 
ants in the Council.” [45] (Became six senior senators in 1819 
to conform with a change in the constitution.) The state officials 
thus constituted 42 per cent of the membership of the board. 
This continued till 1872 when the general assembly authorized the 
substitution of six alumni for the six senior senators, the governor 
and lieutenant-governor still remaining as ex-officio members. [46] 


86 State Control of Private Higher Education 


By this act the percentage of state representation was reduced to 
twelve, which continued and is the situation at present. 

The state of Connecticut also safeguarded a control through 
a reservation in the charter. The president and fellows were 
empowered to make all such laws as they should think fit and 
proper for the management of the institution but with this 
reservation : 


. . which shall be laid before the Assembly as often as required, 
and may also be repealed or disallowed by the Assembly when they 
shall think proper. [43] 


The Dartmouth decision does not apply here. This provision 
is an agreement between the state and the Corporation of Yale 
College. However, it is not the policy of the state ever to take 
arbitrary action. The intent in this regard is definitely stated in 
the Act of 1887, authorizing the use of the name “Yale Uni- 
versity”: 

... And the acceptance of this act by said corporation shall not 
operate to subject the charter to repeal, alteration, or amendment with- 
out its consent. [47] 


The state is kept advised of the financial affairs of the institution 
by the annual reports which it renders to the General Assembly. 
(See page 79.) 

To conclude, the basis of control of the state of Connecticut over 
Yale University rests in annual reports, participation in the mem- 
bership of the managing board, and reservation to alter or repeal 
the laws of the board, the last, however, with the consent of the 
Corporation. 

University of Pennsylvania—In 1753 Thomas and William 
Penn, Proprietors of the Province of Pennsylvania, granted a 
charter to the trustees of the Academy and Charitable School in 
Philadelphia which had been in operation since 1749. Two years 
later the name was changed to “The College, Academy and 
Charitable School.” The trustees under the charter were twenty- 
four, including Benjamin Franklin. [48] No ex-officio members 
were on the board until 1779. At this time the assembly of the 
commonwealth, upon report of a committee appointed to inquire 
into the state of the college, dispossessed the trustees of their 
charter privileges and estates and created a new board. The 


State Control as Defined in the Charters of Colleges 87 


cause of the action is contained in the report, an abstract from 
which follows: 


That divers of the late trustees of the said college have during the 
present contest with Great Britain joined the British army and now 
stand attained as traitors . . . that the said Corporation in its general 
management and conduct has shown an evident hostility to the present 
Government and Constitution of this State, and in divers particulars, 
enmity to the common cause... [and that the trustees] departed 
from the plan of the original founders, and narrowed the foundation 
of the said institution. | 49 | 


The board under the new charter of 1779 consisted of the 
president of the supreme executive council of the commonwealth, 
the vice-president, speaker of the general assembly, chief justice 
of the supreme court, judge of the admiralty, attorney-general, 
three representatives in congress, two justices of the supreme 
court, secretary of the supreme executive council, treasurer; the 
senior minister of the Episcopal, Presbyterian, Baptist, Lutheran, 
German Calvinist, Roman Catholic churches; Benjamin Franklin ; 
and five others. [50] In this great array 50 per cent of the mem- 
bers were so by virtue of a state office. 

Naturally, the former trustees and staff who were deprived of 
their positions resented this action. They presented a petition to 
the Council of Censors, a body elected by the people to “inquir 
whether the executive and legislative branches of the government 
have performed their duty as guardians of the people, or assumed 
to themselves or exercised other or greater powers than they are 
entitled by the constitution.” [51] This Council was prayed in 
the petition to declare unconstitutional the Act Giei77 Oe at Eis 
precipitated discussion which ended finally by an act of the legis- 
lature in 1889, voiding the action of 1779 and restoring the 
surviving trustees and staff of the College, Academy, and Chari- 
table School. [52] The injustice of the Act of 1779 is frankly 
confessed in the new charter: 


_ whereas . .. said trustees and corporation and also the provost, 
vice-provost, professors and all other masters, teachers, ministers and 
officers of the said college, academy and charitable school were with- 
out trial by jury, legal process or proof of misuser or forfeiture, de- 
prived of their said charters, franchises and estates... : all of which 
is repugnant to justice, a violation of the constitution of this com- 


88 State Control of Private Higher Education 


monwealth and dangerous in its precedent to all incorporated bodies 
and to the rights and franchises thereof. [52] 


The board as restored had no state officials as members. 

In 1791 an act united the University of Pennsylvania and the 
College, Academy and Charitable School under the name of the 
University of Pennsylvania, and provided for a board to consist 
of twenty-four members, twelve appointed by each of the two 
boards, together with the governor. [53] No further changes 
have been made in the composition of the board. It remains to-day 
as then constituted with 4 per cent representation. 

This Act of 1791 also required the trustees to lay annually a 
statement of the funds of the institution before the legislature. 

This account of the activity of the state of Pennsylvania regis- 
ters the radical changes that resulted from wartime emotionalism. 
The final outcome was the policy, which continues at present, that 
the institution should be governed by a self-perpetuating board 
with only the governor to represent the state and with annual 
statements of its financial condition for the guidance of the legis- 
lature. 

Columbia University—Columbia University began as King’s 
College in 1754 by grant of charter from the Crown. Manage- 
ment was placed in a complex body of governors consisting of 
two members from England (Lord Archbishop of Canterbury and 
Lord Commissioner for Trade and Plantations), governor, lieu- 
tenant-governor, eldest councilor, judges of the supreme court, 
secretary, treasurer, attorney-general, speaker of the general as- 
sembly, mayor of the City of New York, rector of Trinity Church, 
a minister from each of four other denominations (Reformed 
Protestant Dutch, Ancient Lutheran, French, and Presbyterian), 
president of the college, and twenty-four others. [54] In this. 
group state officials constituted 25 per cent. 

During the war the college ceased for a short period. At the 
opening of the session of the legislature of the state in 1784 the 
promotion of education was a matter of importance and with it 
the reopening of the college. Governor Clinton in his message 
to the legislature in January recommended action looking toward 
the revival and encouragement of seminaries of learning. On 
February 19 a bill was presented entitled “An act for establishing 
a university within the state.” [54] On March 30 the majority 


State Control as Defined in the Charters of Colleges 8&9 


of the surviving governors of King’s College, desirous of reviving 
the institution, submitted a petition to the legislature stating that 
a sufficient number of governors could not be convened to carry 
on the business of the college, and that many points in the charter 
were not consistent with the “liberality” and “religious freedom” 
of the new constitution, and prayed the legislature to revise the 
charter. [55] 

It is not necessary to review the discussion that accompanied 
the evolution of the centralized system of education under the 
Regents of the University of the State of New York with King’s 
College occupying a strategic position by virtue of its existence 
as the only institution of higher education at the time in the state. 
This is fully set forth in a bulletin of the United States Bureau 
of Education. [55] 

The resulting legislation was the creation of the Regents of 
the University of the State of New York, a corporate body, 
vested with power to manage institutions created under its author- 
ity, and King’s College. The board was an unwieldy body, widely 
scattered, and extensively representative of political and religious 
interests. The following summary of the groups which constituted 
the board is evidence: [56] 

a. State officials: governor, lieutenant-governor, president of 

the senate, speaker of the assembly, mayor of the City of 
New York, mayor of the City of Albany, attorney-general, 
and secretary of state. 

b. County members: two from each of the twelve counties in 
the state. 

c. Clerical members: a representative from each of the reli- 
gious denominations in the state. 

d. Founders’ members: a representative named by the founder 
of each institution if he endows it with real and personal 
property of the yearly value of 1,000 bushels of wheat, 
and if the institution is admitted to the University. 

e. Members at large: twenty-four others. (These were added 
in an amendment later in the same year, November 26.) 

Business necessarily dragged under such a body. It was 
difficult for them to convene. All the property was in their hands. 
Since the majority of the members were in and about New York, 
King’s College was favored. Jealousies arose. [57] 

Relief came in the legislation of 1787 which resulted in the 


go State Control of Private Higher Education 


restoration of the charter of King’s College of 1754 with the 
name changed to Columbia College. At the same time Regents 
of the University of the State of New York was established. 
Fach was separate with corporate rights. The trustees of Colum- 
bia College were to consist of twenty-four members (beginning 
with twenty-nine, none to be appointed until the number was 
reduced by death or resignation to twenty-four). The members 
were not to be such “in virtue of any offices, character or de- 
scriptions whatever.” [57] This act brought to a close the par- 
ticipation of the state of New York in the membership of the 
managing board of Columbia College. 

The Act of 1787 gave the Regents of the University of the 
State of New York power to “visit and inspect all the colleges, 
academies or schools which are or may be established in the 
state.” Since the charter of 1754, which was restored to Columbia, 
preceded the establishment of the Regents of the University, and 
no clause was included in the Act of 1787 specifically subjecting 
the College to the visitation of the Regents, nor in the subsequent 
charter of 1810, [58] the supervision of the Regents probably does 
not extend to this institution. There is justification in the con- 
clusion that the state of New York, except through the courts, 
has no direct control over Columbia University. 

Dartmouth College.—The efforts of the state of New Hampshire 
to gain control of Dartmouth College, and the resulting decision 
of the Supreme Court of the United States have been described 
in Chapter II]. (See page 25.) It is not necessary to repeat 
the account. Had the plans of the state carried, the percentage 
of state representation on the board would have been seventy- 
seven. 

This concludes the account of the activities of the states to 
gain control over Colonial colleges. The three periods are evident: 
(a@) the period prior to the Revolution when there was little 
participation by the states, (b) the first decades following state- 
hood when there was great participation, or attempted participa- 
tion, (c) the more recent period of little or no participation. The 
efforts at control, as viewed to-day, were distressingly awkward. 
Crass political manipulation was present. The managing bodies 
were unwieldy. They were heavy with state officials who came to 
the membership casually and not to the purpose. The experience 
cannot but lead to the conclusion that control by the state through 


State Control as Defined in the Charters of Colleges 91 


representation on the managing boards is neither desirable nor 
effective. 
GENERAL SUMMARY 


The control which states maintain over incorporated institutions 
of higher education as defined in the charters of thirty-nine 
selected private colleges and universities is summarized thus: 

Thirty of the institutions considered are chartered under special 
act of legislation; nine under general law. 

States maintain little or no control by limiting educational in- 
stitutions in the matter of property, admissions, courses, staff, or 
degrees. The earlier practice of restricting the maximum property 
holdings is being discontinued. 

The charters of approximately one-half of the institutions con- 
tain clauses limiting the imposition of any religious test as a 
basis for admission. 

States exercise an initial control over chartered institutions 
through their legislatures as approving agencies. It is not the 
practice of states to retain control through representation upon the 
managing board. 

Continuing control is maintained by states over a few chartered 
institutions of higher education through limited tenure of the 
charter or through regulatory control by an agency of the state. 
The charters of three institutions contain limited tenure clauses. 
Institutions in New York State, except Columbia, are subject to 
visitation by the Regents of the University of New York. Three 
institutions render annual reports to the legislature. 

There is reserved to the legislature in the charters of one-third 
of the institutions the right to amend or repeal the charter. 

During the first decades following the revolution, Massachusetts, 
New York, Pennsylvania, Connecticut, and New Hampshire, 
showed great activity in extending control over their respective 
colleges. For the most part this control has been relinquished. 


REFERENCES 


1. Clews. Educational Legislation and Administration of the Colonial 
Governments, p. 13. 

2. New York University. Historical Papers, Vol. 1, Charter 1831, Art. I. 

Tufts College. Charter of the Trustees, 1924, “Act of 1850,” Sec. 2. 

4. Wellesley College. Acts of Incorporation and By-Laws, “Act of 
1870,” Sec. 2. 


9 


State Control of Private Higher Education 


Ibid., “Act of 1884.” 

Ibid., “Actiof tori.” 

LOE ActoO re lO21+0 

New York University. The Charter and Statutes, 1915, Art. XV, as 
amended 1803. 

Duke University. Catalog, 1924-25. “History and Government,” etc., 
PACE OL L011. 

Harvard University. Catalog 1924-25, Pp. XXV. 


. Clews. Supra, “Charter of King’s College, 1754,” p. 268. 


University of Pittsburgh. Legislative Acts and Public Documents Re- 
lating to the University of Pittsburgh, 1923, p. 73. 

University of Chicago. By-Laws of the Board of Trustees, Articles of 
Incorporation, etc., 1925, Sec. 3, p. 20. 

Clews. Supra, “Act for a Collegiate School,” p. 121. 

Clews. Supra, “College of New Jersey,” p. 323. 

Tulane University. Charter and By-Laws of the Tulane Educational 
Fund, “Letter of Paul Tulane,” p. 6. 

Clews. Supra, p. 343. 

Act of 1853 Incorporating Eliot Seminary and Amendment, 1857, Sec. 2 
of Act of 1857. (Copy in library of Carnegie Foundation for the 
Advancement of Teaching, New York.) 

Clews. Supra, p. 194. 


. Tufts College. Supra, “Act of 1852,” Sec. 2. 
TDI om aACUlOl pEGO7{noec 2. 
. Laws of New York, 1846, Chap. 193, Sec. 9. 


Ibid., Sec. I1. 

Virginia. General Laws, p. 246. 

Syracuse University. Charter and By-Laws, 1925, “Act of 1870, Vas- 
sar College.” By-Laws of the Board of Trustees, Supplement to 
Report of the President, Sept., 1922. 

Syracuse University. Supra, “Laws of 1920,” Chap. 81, Dec. 13. 
University of Pittsburgh. Supra, p. 104. 

Tufts College. Supra, “Act of 1852,” Sec. 7. 

The Yale Corporation. Charter, Legislative Acts, etc., p. 18. 


. Clews. Supra, p. 8. 
UNLDIG sO saLO; 
ani ind ss Charters1 050, Dal 5: 


Ibid., p. 14. 


. Ibvid., “Appendix to Charter 1650,” p. 33. 


Harvard University. Catalog, 1924-25. “History and Government,” 
DURA 


. Peirce, B. History of Harvard University. “Memorial of the Cor- 


poration to the General Court, 1812,” pp. 89, 90. 
Harvard University. Catalog. Supra, p. xxvii. 
Ibid., p. xxiv. 


. Ibid., “Acts of 1810, 1814, 1851, 1865.” 
. Clews. Supra, p. 121 et seq. 
. Clews. Supra, “Act of 1701,” p. 122. 


State Control as Defined in the Charters of Colleges 93 


. Clews. Supra, “Charter 1745,” p. 152. 


Clews. Supra, “Table of Grants and Appropriations,” p. 501. 
Yale University. The Yale Corporation, Charter, Legislation, etc. 


1923, p. I5. 


Sel bid, e 10,575 
. Ibid., “Act of 1887.” 


Clews. Supra, pp. 300-302. 


U.S. Bureau of Education. Bull. 1892, No. 2, “Circular of Informa- 


tion,” p. 83. 
_ University of Pittsburgh. Supra, p. 36. 
o Lota. ips Aa: 
SL DI. DD. 523153 
. Ibid., p. 56. 
- Columbia University. Charter and Official Records, 1920, pp. 12, 13. 


_ U.S. Bureau of Education. Bull. 1900, No. 3, “Circular of Informa- 


tion.” The University of the State of New York, p. 49 ff. 
Columbia University. Supra, p. 38 ff. 
Ibid., p. 45 ff. 


. Ibid., p. 53 ff. 
_ Harvard University. Catalog. Supra, p. xxvi. 
_ Northwestern University. The Charter and Its Amendments, etc., 


1921, “Charter 1851,” Sec. 9. 


_ Drake University. Articles of Incorporation and By-Laws, 1924. 


Duke University Record, Vol. XX, No. to, Art. 5.8 


. Tulane University. Supra, Act. 43, Sec. 2, “General Assembly, 1884.” 
. Tufts College. Supra, “Act of 1852,” Sec. 6. 

PLDI eC. 7: 

. Laws of New York, 1910, Chap. 33, Sec. I. 

. Supra, “Act of 1853 Incorporating Eliot Seminary.” 

. Lehigh University. Act of Incorporation, 1866. (Copy in library of 


Carnegie Foundation for the Advancement of Teaching, N. Y.) 
Tulane University. Supra, “Letter from Paul T ulane,” p. 6. 


_ University of Buffalo. Laws of New York, “Act of 1846,” Chap. 193, 


Sec. II. 


. Johns Hopkins University, Regtster, 1924-25, MACtROIy 1007, Deca ae 
. Laws of New York. “Act of 1846,” @hap.1103,, Sec.) 0- 
. University of Buffalo. Supra, Sec. 4. 


New York University. Historical Papers, Vol. 1, “Charter 1831,” 
Art. V. 


_ Northwestern University. Supra, Sec. 3. 
. Ibid., “Second Amendment,” Sec. I. 
_ Western Reserve University. By-Laws, 1921, Art. XI. 


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TABLE II 
ANALYSIS OF THE CHARTERS OF THIRTY-NINE SELECTED PRIVATE COLLEGES AND UNIVERSITIES HAVING AN ENROLLMENT OF 1,000 OR MORE 


LIMITATIONS IN THE ORIGINAL CHARTER 
PERTAINING TO 





MEMBERSHIP OF THE MANAGING BOARD 































TENURE OF OFFICE OF THE BOARD MEMBERS 
Reserva- 
tion : 
Law : Subject 
Date | Under ae to Visi- ORIGINAL CHARTER PRESENT CHARTER ORIGINAL CHARTER PRESENT CHARTER 
COLLEGE OR UNIVERSITY State | Estab- Vhich an tation ; 
nie a Amend en = : set nt! Admis- ¢ Staff | Degrees |Ex-officio Lay Ex-officio Lay D : 
tere Ca 2 i OULSeS S 2 Ex-offici Denomi- Ex-officio Denomi- : enomi- 
. R ue fee Property| S078 Sta ee ©! Members Apres i Faculty | otal State Presi. | Members| national Alumni | Faculty | o44) Satie’ 
she Cit dent hi Members Members dent E ey - |Members Members| Members 
ity Ex-officio x-officio 
Harvard (Corporation) ........| Mass. 1636 Sp. (3) (3) Yes . ae é a0 = 50 #26) & 5 ve ey sec 5 So Es a4 i ; 
Harvard (Overseers)... Mass. ae as ae on nd 4 on A ae eC Hes 4s ap i ae a re 
William and Mary..........--| Va. 1693 Sp. 1 No No Yes Ae ae Ss an big Se 1 os x - Ee Ff ae 
Vale ot cee ak Saree onsen - 1701 Sp. Yes ae ae aN ‘a a ee as Aes Si 11 - a 1 i mf ey ~ 
iversity of lvania....| Pa. 1749 Sp. 2 No es es rh an ‘ sua ae ; a ai 5 a ahs np ** 
Poaeee = biorce ea ae Noi. 1746 Sp. 1 No No ives (13) Bic : Usual 1 1 21 2 oe : a Fe 35 : 24 + 
Fe ROSE | Ue N.Y?) 1754 (7 Spo No No Yes (13) e Be Usual | 12 1 22 5 : 40 1 1 3 | 99) By 24 6 
Brown.... See, PEERY Res 1764 Sp. No No Yes (13) Ey, 4 Usual Se 36 of 36 a, Ae se 3 “+ 
Tecksrath obese Soren «ots N.H. | 1769 | Sp.1 No No Yes (13) i, A: Usual 1 1 10 a a 12 1 5 4 5(35) (30) at 
Roigeei t,t ib ar aa N. J. 1770 Sp. 1 No (10) Yes 3 (15) (21) Usual 4 Ap 37 13 : 54 ae 41 $e oa “* = mae 
xe eae SONA SCS aes NY. 1795 Gen. Yes Yes Yes (13) ae ate Usual 3 21 ae su i: 15 “s 4 fe P ee 
RE RE NE a Date +) 1789 Sp. Yes No Yes Be us Ae Usual ite 53 4 s : 56 a at & ne nA 
University of Pittsburgh....... Pa. 1819 Sp. No No Yes (13) "4 (21) Usual ye me ue os + ; 4 x2 6iss) os : % ae 
George Washington........--- DEC? 1821 Sp. No No No (43) Ly a, Usual : i ae Ss : < a 2 4(36) es : re 
Western Reserve........+.+-+- Ohio 1826 Sp. Yes No No ia ‘ Usual 1 2 pe ae a 3 *s 32031) 
New York aaeae re 1831 Sp. Yes Yes Yes Es dc Usual 5 . 32 . + . +. +. +. * oe 
RE et ca SITS Le Ohio | 1834 Sp Yes No No i Bs : Usual aA ve 12 ui -12 1 18 Ay 6 se 25 oy 
ee Riavier. hese te Ohio | 1842 | Sp (4y..\| SGNee eb lea! 9S. - 2 ye Usaedd hp i s i 3 . “a s ‘a 2 & , Zz 
han’ Wesleyan sent sece fep'+ ey hy = ae ne ne Bx Se aks vee oe : as H Be : “ - Z -- 
RSA SESE Oe eee ee Dp. fo) fo) fe) the ne dict A ae fo Ae; cu Be - is ‘ 
heather Buffalo Nn 1846 Sp Yes Yes (12) (14) a (22) (23) 2 oe 16(27) fe (28) be a rt 2 (28) = a : (28) 
Tuits e : Mass 1850 Sp Yes (11) Yes (13) +s (22) (24) “+ 23 04 Be 36 “he 33 8 3 e 44(32) ry 4 = 
Northwestern....--. Hes Tk 1851 Sp (5) No (13) (13) -: (22) | Usual . ** ae : s 7 ; ; 33 33 ‘5 Lif ey 
Northwestern.......-+.--- Mo foes Sp No No Ne (13) (17) (22) Usual ee 17 oe ate 1 4 1 os (33) (33) ife aS oi 
Washington.......---++-+ee+- aa pete 3 No No Vos . 7 a Wenat 2 ai 35 e ; 37 Bi 24 12 *€ 36 ae é = 
pec Nb eR aE Wis. 1864 Sp No No No 5 .. - Usual . ie 40 : be 3 17 : 5 s 2 Life 5 . 
sesh iy aaa SUR i gs N.Y. | 1861 Sp Yes ui Yes a ae He Usual ee ee 29 Be : i; ig i 15 € 
James Millikin. ............-- i. 1865 a No No a (13) aS (i) oe Ss i id x ce 10 : id ¥. (34) ee 10 Life 6 LA 
Benign oo sesacas <= mela kere ‘ae “ (25) 12 us i 12 1 12 : % . 13 Life hed = 
i 1867 G No No No a oe 23 
Johns Hopleins.-----.-+++17-| Mo | t3so |. Spr | Yea | Yes | ‘Wee | G3) |) Gay) | |.c) | iteaal DAA bee cateeyen he aes Dy rigs Leer sie Pease Be 5.9) Sea ae Pe red Pa 
Beer Ge ae bee. N.Y 1870 Sp Yes Yes No Pr ®, ; Usual : ah 53 ye 20 aa 18 k ‘ Si bite 6 . 
Wellesley..---- 0 orn- 320i s5 =" Mass. | 1870 | Sp ne . ie ie Teta N és 9 i2 FS 21 “a 30 * ee , 30 3 is 
University of South California..| Calif. | 1880 | Gen. (6) No No ‘ re ae 1 8 16 i 25 34 i2 46 3 3 Bd 
ont 563 *f Iowa 1881 Gen. (7) No No (13) ae i ean a er 20 ae 17 ry a 20 Life Se 
alae Re kek. a ea RL 1882 | Gen. (8) (8) No (8) (20) . Penal 3 as i ‘3 : ra : a “ 28 31 “ .* 
SRS ee ANN Nee al Texas | 1886 | Gen (9) (9) No fe es age i 13 ; 13 23 Sf _ 25 | Life - 9 
“ee Liga a Par | 1888 | Gen. | No | No | No | 19 |. -+ | Usual |. :; is 7 13 ; 23 it $e 25 | Lite s S 
esee ers ces ee ae OF Calif 1885 en ° No ray ae Sex fa yr ee ee ee o« - oe 
ee eas Se Se il. | 1890 Gen. No No No ae be (22) Usual : 7 14 21 = 10 1S rid ** 25 3 * +* ee 
"CT Ep a IE ee re ee eee ee 
iii) a ee ee 


(1) Charter from the crown. 
(2) Charter from the proprietors. ‘ 2 bs. sae 
hharter of 1650 was confirmed in the Constitution o e Common- 
wen 1780 with this proviso: ‘‘nothing herein shall be construed to prevent the 
Legislature of this Commonwealth from making such alterations in the aha 
ment of said University as shall be conducive to its advantage, and the interest o: 
the republic of letters, in as full a manner as might have been done by the Legis- 
lature of the late Province of the Massachusetts Bay.’’ [60] ; 
(4) In addition to the reservation to amend or repeal, the charter contains a 
tenure clause of thirty years which was removed in 1869. r, a 
i i is 
. ld the corporation at any time act contrary to the provisions 0 
es my ‘fail to comply with the same, upon complaint being made to the 
Circuit Court of Cook County, a scire facias shall issue, and the circuit attorney 
shall prosecute in behalf of the People of this State for forfeiture of this charter. 
[61] on 
(6) Limited tenure of fifty years. 
bs ticles may be 
are empowered to change the charter. These art 
LDR g tase ert ee vote of the trustees at any annual meeting or at any 
meeting rightly called for that purpose, but the name and purpose of the eer 
tion shall never be changed except by a unanimous vote of the trustees. , [ : 
servati the university. 
n covers the property transferred by the state to 
~. #) a phi sone so transferred, may not be eel or ioppeed Oke See 
egislati tion... and if the Tulane University of Loulsia 201 
eae the Srperey and exercise the privileges, franchises and sean ae 
under the control and administration of, and enjoyed by the University : 
pat jana then and in that event the State of Louisiana shall have the 
right to resume the custody, control and administration of said property ..« -, 


[63] 


(9) Tenure of fifty years. 


(10) Visitation by the state confined to use of donations by the state, primarily 
land-grant funds. 

(11) In addition to reservation to alter or repeal, the Legislature ‘‘may ap- 
point and establish overseers or visitors of the said college, with all necessary 
powers for the better aid, preservation, and government thereof.’’ [64] 


(13) ‘‘No student shall be refused admission to or denied any of the privileges’ 


honors, or degrees of said college on account of the religious opinions he may 
entertain.” [65] (Similar provisions are contained in others.) 
(14) ‘‘. . . shall be free to all persons without distinction as to race, rank» 


class, sex, ot previous occupation.” 
arrangements with the city.) [66] 


(15) Courses in divinity and English language to be given. 
(17) ‘‘No instruction, either sectarian in religion or party in politics, shall be 
allowed in any department of said university.’’ [67] 


(18) The codicil to the will of James Millikin contained a provision that the 
Bible be taught. 


(19) ‘‘A polytechnic College for the education of youth.” [68] 

(20) ‘‘I mean to foster such a course of intellectual development as shall be 
useful and of solid worth, and not be merely ornamental or superficial.’’ (Letter 
from Paul Tulane.) [69] 

(21) Professors cannot hold the office of trustee. be, : 

(22) Professors are not to be required to profess any particular religious opin- 
ions as a test of office. fae lay learteraehinate: 

ed shall receive such diploma [medicine] unless he sha 
Cad ee ee mecca science for at fea three years after he attained the 


(Reference to students admitted under 


age of sixteen years, with some physician and surgeon, duly authorized by law to 
practice his profession; and shall also after that age have attended two complete 
courses of all the lectures delivered in some incorporated medical college, the last 


of ae rane shall have been delivered by the medical faculty of said univer- 
Sityon: 


(24) Usually conferred by colleges in New England, except medical degrees 
This limitation removed in 1867. 


(25) ‘*, . . shall have power to admit students of the said university, who 
shall merit the distinction, to the office and profession of surgeon, or to the degree 
of Doctor of Medicine, or of Doctor of Laws, or of Bachelor or Master of Arts, 
to grant to students in said university such certificates of proficiency and attain- 
ments in any special study as the said university may see proper to confer; and 
to grant the honorary degrees of Doctor of Laws, Doctor of Medicine, or such 
other degrees as may be proper, to any person who may merit such distinction, 
whether such person be a student of said university or not.’’ [71 


(26) President and bursar of the college. 


_ (27) Curators of the medical department as well as the council of the univer- 
sity. ‘‘The council, whenever they shall organize the medical department of 
such university, shall appoint not less than twenty persons, being practicing 
physicians and surgeons, to be curators of the medica! department of said uni- 
versity, and the president of the medical society of the county of Erie, and the 
censors of the state medical society appointed for the senatorial district in which 
said university shall be situated shall be ex-officio curators thereof.”’ [72] 


(28) ‘*In addition to the members of the council ._ . each of the several 
faculties of said university shall appoint one member of said council, who shall 
hold his office during the pleasure of the faculty appointing him." {73] At pre- 


sent the deans ofthe several faculties are members of the council without voting 
power. 


(29) Became a state university in 1906. The board of visitors are appointed 
by the governor, by and with the consent of the senate. 


(30) In 1807 members of the governor's council, the president of the senate, 
the speaker of the house of representatives, and the chief justice of the superior 
court were made, ex-officio, trustees of the college, in respect to grants made by 
the State of New Hampshire. These are not included. 

(31) ‘*No one religious sect shall ever have a majority of the board.” [74] 


(32) Visitors were provided for in addition to the trustees. Each conference 
**shall have the right to appoint annually two suitable persons, members of their 
own body, visitors to said university, who shall attend the examination of stu- 
dents, and be entitled to participate in the deliberations of the Board of Trustees 
and enjoy all the privileges of members of said board except the right to vote.”” [75] 
In 1861 the charter was amended providing that the two members elected by each 
conference should also ‘‘be and perform the duties of the visitors.” [76] 

(33) Also an advisory board consisting of twelve alumni and d of 
College of Liberal Arts, Schools of Engineering, Architecture, remem, bee 
Finance, Law, Medicine and Dentistry. (See catalog 1925.) 

(34) Alumni sit with the board to advise only. 

(35) Recommendations are made by the alumni association to the trustees. 

__ (36) ‘*The Board of Trustees invites the University Faculty to name three of 
its members, each for a term of three years, not exceeding one member from any 
College or School, who shall sit with the Board at all its regular and specia] 
meetings, and who shall be called by courtesy Faculty Members of the Board. 
They shall be entitled to notice of all meetings of the Board and to take part in the 
discussions and deliberations thereof, but shall have no voting power.” [77] 








ASPECTS OF STATE CONTROL 





SouRCE OF AUTHORITY TO INCORPO- 
RATE INSTITUTIONS OF HIGHER 
EDUCATION. 





INITIAL CONTROL BY THE STATE 
OVER PRIVATE INCORPORATED IN- 
STITUTIONS OF HIGHER EDUCATION. 





CONTINUING CONTROL BY THE 
STATE OVER PRIVATE INCORPO- 
RATED INSTITUTIONS OF HIGHER 
EDUCATION. 








CHART 2 


STATE CONTROL OF PRIVATE INCORPORATED INSTITUTIONS OF HIGHER EDUCATION —SUMMARY 


AUTHORITY OF THE STATE IN THE CONTROL OF PRIVATE 
INCORPORATED INSTITUTIONS OF HIGHER EDUCATION 
AS DEFINED IN THE DECISIONS OF THE UNITED STATES 
SUPREME CouRT. 


Authority to incorporate educational institutions rests 
with the state. 





A state may place upon the corporate powers of an 
institution at the time of incorporation whatever 
limitations it deems best in the interest of public policy. 


The state must grant to the corporation the powers 
necessary for it to do business in pursuance of its pur- 
pose. 


The state respects the right of the donor to. direct the 
use of his charity, either himself, or through trustees 
to whom he assigns his right. 





A state may exercise a continuing control over incorpo- 
rated institutions of higher education through 


1. Reservation of power to alter or repeal the charter 
2. Courts 
3. General regulatory legislation. 


The exercise of continuing control, even though power 
to amend or repeal is reserved, cannot defeat or sub- 
stantially impair the object of the grant, or any rights 
vested under the charter. 


Control through the courts is directed primarily to safe- 
guarding the proper pursuance of the objects of the 
trust and right appropriation of the funds. 


Any enactment by the legislature of a state must not be 
an unwarranted, arbitrary interference with the con- 
stitutional right to carry on a lawful business, and to 
use and enjoy property. 


STATE CONTROL OF PRIVATE INCORPORATED INSTITU- 
TIONS OF HIGHER EDUCATION AS PROVIDED IN THE 
LAWS OF THE STATES GOVERNING THEIR INCORPORA- 
TION. 





States generally provide for the incorporation of edu- 
cational institutions through general laws. Three 
states only retain the early procedure of chartering 
institutions through special act of the legislature. 
Eleven states provide for incorporation either under 
general law or by special act. 





The laws generally provide no state control of incorpo- 
rated institutions of higher education by requiring at 
the time of incorporation careful scrutiny of the articles 
of incorporation by a special approving agency. Seven 
states place approving power in a judge of the county 
or circuit court, six in a charter board or corporation 
commission, ten in an educational agency. 


The laws generally provide no state control by prescrib- 
ing minimum standards for the amount of property, 
number of instructional staff, courses, admissions, or 
degrees. 


There is a tendency to empower the educational agency 
of the state, upon its own standards, to approve the 
articles of incorporation, or grant license to confer 
degrees. Ten states so provide. 





The laws generally provide no continuing state control 
by limiting the tenure of the educational corporation, 
or by reserving to the legislature the right to amend or 
repeal the articles of incorporation. Nine states limit 
the tenure. Six states reserve the right to amend or 
repeal. 


There is a tendency to empower the educational agency 
of the state with authority to visit and inspect insti- 
tutions of higher education, and where standards pre- 
scribed by the agency are not complied with, to amend 
or repeal the articles of incorporation or revoke the 
license to confer degrees. Seven states so provide. 





a 


STATE CONTROL OF PRIVATE INCORPORATED INSTITU- 
TIONS OF HIGHER EDUCATION AS DEFINED IN THE 
CHARTERS OF SELECTED PRIVATE COLLEGES AND 
UNIVERSITIES. 





Thirty of the institutions considered are chartered 
under special act of legislation; nine under general 
law. 





States maintain little or no control by limiting educa- 
tional institutions in the matter of property, admis- 
sions, courses, staff, or degrees. The earlier practice 
of restricting the maximum property holdings is being 
discontinued. 


The charters of approximately one-half of the institu- 
tions contain clauses forbidding the imposition of any 
religious test as a basis for admission. 


States exercise an initial control over chartered insti- 
tutions through their legislatures as approving agencies. 
It is not the practice of states to retain control through 
representation upon the managing board. 


Continuing control is maintained by states over a few 
chartered institutions of higher education through 
limited tenure of the charter, or through regulatory 
control by an agency of the state. The charters of three 
institutions contain limited tenure clauses. Institu- 
tions in New York State except Columbia are subject 
to visitation by the Regents of the University of the 
State of New York. Three institutions render annual 
reports to the legislature. 


There is reserved to the legislature in the charters of 
one-third of the institutions the right to amend or 
repeal the charter. 


During the first decades following the revolution 
Massachusetts, New York, Pennsylvania, Connecti- 
cut, and New Hampshire showed great activity in 
extending control over their respective colleges. For 
the most part this control has been relinquished. 


I 





CHAPTER V 
SUMMARY OF FINDINGS 


This concluding chapter summarizes the findings in the study 
of the United States Supreme Court decisions, state laws, and 
charters of private colleges and universities as they relate to the 
authority of the state to incorporate institutions of higher educa- 
tion, and to the state’s initial and continuing control over such 
institutions. 

The findings are compactly and conveniently assembled in 
Chart 2. They are so arranged that state control may be con- 
sidered either with respect to the sources examined or to its 
various aspects. Repetition of the findings is not necessary. 
In general it may be said that the states do not provide uniform 
means for the control of private incorporated institutions of 
higher education, either at the time of incorporation or thereafter. 
The policy is to give such institutions, within the power and 
privilege granted by the state, free reign in the management of their 
affairs including the granting of degrees. The primary function 
of the state is to see that the objects of the trust under which the 
institutions operate are duly pursued and the funds rightly appro- 
priated; any action by the state is to secure the object of the 
grant or a public right. 

There is a tendency to place authority in the educational agency 
of the state, upon such standards as the educational agency may 
define, to approve the articles of incorporation of new institutions 
or to grant the institutions license to confer degrees; likewise, to 
alter the articles or revoke the license where standards prescribed 
by the agency are not complied with. 


95 





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